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Exhibit 4.1
EXECUTION COPY
___________________________________________________________
___________________________________________________________
OCTEL DEVELOPMENTS PLC
Issuer
OCTEL CORP.
Guarantor
10% Senior Notes due 2006
____________________
INDENTURE
Dated as of May 1, 1998
_____________________
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
Trustee
___________________________________________________________
___________________________________________________________
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) .................................................................. 7.10
(a)(2) .................................................................. 7.10
(a)(3) .................................................................. N.A.
(a)(4) .................................................................. N.A.
(b) .................................................................. 7.08; 7.10
(c) .................................................................. N.A.
311(a) .................................................................. 7.11
(b) .................................................................. 7.11
(c) .................................................................. N.A.
312(a) .................................................................. 2.05
(b) .................................................................. 13.03
(c) .................................................................. 13.03
313(a) .................................................................. 7.06
(b)(1) .................................................................. N.A.
(b)(2) .................................................................. 7.06
(c) .................................................................. 13.02
(d) .................................................................. 7.06
314(a) .................................................................. 4.02;
4.14; 13.02
(b) .................................................................. N.A.
(c)(1) .................................................................. 13.04
(c)(2) .................................................................. 13.04
(c)(3) .................................................................. N.A.
(d) .................................................................. N.A.
(e) .................................................................. 13.05
(f) .................................................................. 4.14
315(a) .................................................................. 7.01
(b) .................................................................. 7.05; 13.02
(c) .................................................................. 7.01
(d) .................................................................. 7.01
(e) .................................................................. 6.11
316(a)(last sentence) .................................................... 13.06
(a)(1)(A) ............................................................... 6.05
(a)(1)(B) ............................................................... 6.04
(a)(2) ............................................................... N.A.
(b) ............................................................... 6.07
317(a)(1) .................................................................. 6.08
(a)(2) .................................................................. 6.09
(b) .................................................................. 2.04
318(a) .................................................................. 13.01
N.A. means Not Applicable.
__________________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the 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............................................ 30
SECTION 1.03. Incorporation by Reference of Trust Indenture Act............ 31
SECTION 1.04. Rules of Construction........................................ 31
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating.............................................. 32
SECTION 2.02. Execution and Authentication................................. 32
SECTION 2.03. Registrar and Paying Agent................................... 33
SECTION 2.04. Paying Agent To Hold Money in Trust.......................... 34
SECTION 2.05. Securityholder Lists......................................... 34
SECTION 2.06. Transfer and Exchange........................................ 34
SECTION 2.07. Replacement Securities....................................... 34
SECTION 2.08. Outstanding Securities....................................... 35
SECTION 2.09. Temporary Securities......................................... 35
SECTION 2.10. Cancellation................................................. 35
SECTION 2.11. Defaulted Interest........................................... 35
SECTION 2.12. CUSIP Numbers and ISIN Numbers............................... 35
SECTION 2.13. Registration, Registration of Transfer and Exchange.......... 37
SECTION 2.14. Payment of Interest; Interest Rights Preserved............... 43
ARTICLE 3
Redemption
SECTION 3.01. Notice to Trustee............................................ 45
SECTION 3.02. Selection of Securities To Be Redeemed....................... 45
SECTION 3.03. Notice of Redemption......................................... 45
SECTION 3.04. Effect of Notice of Notice of Redemption..................... 48
SECTION 3.05. Deposit of Redemption Price.................................. 48
SECTION 3.06. Securities Redeemed in Part.................................. 48
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ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities........................................ 48
SECTION 4.02. SEC Reports.................................................. 49
SECTION 4.03. Limitation on Consolidated Indebtedness...................... 49
SECTION 4.04. Limitation on Restricted Payments............................ 50
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries............................................... 54
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock........... 55
SECTION 4.07. Limitation on Affiliate Transactions......................... 59
SECTION 4.08. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries.................................... 60
SECTION 4.09. Change of Control............................................ 61
SECTION 4.10. Limitation on Liens.......................................... 63
SECTION 4.11. Limitation on Sale/Leaseback Transactions.................... 63
SECTION 4.12. Limitations on Lines of Business............................. 64
SECTION 4.13. Additional Amounts........................................... 64
SECTION 4.14. Compliance Certificate....................................... 67
SECTION 4.15. Further Instruments and Acts................................. 67
ARTICLE 5
Successor Company
SECTION 5.01. When Parent and Company May Merge or Transfer Assets......... 67
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default............................................ 69
SECTION 6.02. Acceleration................................................. 72
SECTION 6.03. Other Remedies............................................... 73
SECTION 6.04. Waiver of past Defaults...................................... 73
SECTION 6.05. Control by Majority.......................................... 73
SECTION 6.06. Limitation on Suits.......................................... 74
SECTION 6.07. Rights of Holders to Receive Payment......................... 74
SECTION 6.08. Collection Suit by Trustee................................... 74
SECTION 6.09. Trustee May File Proofs of Claim............................. 74
SECTION 6.10. Priorities................................................... 75
SECTION 6.11. Undertaking for Costs........................................ 75
SECTION 6.12. Waiver of Stay or Extension Laws............................. 76
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ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee ........................................ 76
SECTION 7.02. Rights of Trustee ........................................ 77
SECTION 7.03. Individual Rights of Trustee ............................. 78
SECTION 7.04. Trustee's Disclaimer ..................................... 78
SECTION 7.05. Notice of Defaults ....................................... 79
SECTION 7.06. Reports by Trustee to Holders ............................ 79
SECTION 7.07. Compensation and Indemnity ............................... 79
SECTION 7.08. Replacement of Trustee ................................... 80
SECTION 7.09. Successor Trustee by Merger .............................. 81
SECTION 7.10. Eligibility; Disqualification ............................ 81
SECTION 7.11. Preferential Collection of Claims Against Company......... 82
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance ......... 82
SECTION 8.02. Conditions to Defeasance ................................. 83
SECTION 8.03. Application of Trust Money ............................... 85
SECTION 8.04. Repayment to Company ..................................... 85
SECTION 8.05. Indemnity for Government Obligations ..................... 85
SECTION 8.06. Reinstatement ............................................ 85
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders ............................... 86
SECTION 9.02. With Consent of Holders .................................. 87
SECTION 9.03. Compliance with Trust Indenture Act ...................... 88
SECTION 9.04. Revocation and Effect of Consents and Waivers ............ 88
SECTION 9.05. Notation on or Exchange of Securities .................... 89
SECTION 9.06. Trustee to Sign Amendments ............................... 89
SECTION 9.07. Payment for Consent ...................................... 89
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ARTICLE 10
Payment Blockage
SECTION 10.01. Default on Bank Indebtedness ..................... 90
SECTION 10.02. Acceleration of Payment of Securities ............ 91
SECTION 10.03. Relative Rights .................................. 91
SECTION 10.04. Payment Blockage May Not Be Impaired by Company .. 91
SECTION 10.05. Notice to Representative ......................... 91
SECTION 10.06. Article 10 Not to Prevent Events of Default or
Limit Right to Accelerate ...................... 91
SECTION 10.07. Trust Moneys Not Subject to Payment Blockage ..... 91
ARTICLE 11
Parent Guaranty
SECTION 11.01. Guarantee ........................................ 92
SECTION 11.02. Successors and Assigns ........................... 94
SECTION 11.03. No Waiver ........................................ 94
SECTION 11.04. Modification ..................................... 95
ARTICLE 12
Payment Blockage of Parent Guaranty
SECTION 12.01. Default on Bank Indebtedness ..................... 95
SECTION 12.02. Demand for Payment of Securities ................. 96
SECTION 12.03. Relative Rights .................................. 96
SECTION 12.04. Payment Blockage May Not Be Impaired by Parent ... 96
SECTION 12.05. Notice to Representative ......................... 96
SECTION 12.06. Article 12 Not to Prevent Defaults under Parent
Guaranty or Limit Right to Demand Payment ...... 96
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls ..................... 97
SECTION 13.02. Notices .......................................... 97
SECTION 13.03. Communication by Holders with Other Holders ...... 99
SECTION 13.04. Certificate and Opinion as to
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Conditions Precedent....................................... 99
SECTION 13.05. Statements Required in Certificate or Opinion.............. 99
SECTION 13.06. When Securities Disregarded................................ 100
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar............... 100
SECTION 13.08. Legal Holidays............................................. 100
SECTION 13.09. Governing Law.............................................. 100
SECTION 13.10. No Recourse Against Others................................. 100
SECTION 13.11. Successors................................................. 100
SECTION 13.12. Multiple Originals......................................... 101
SECTION 13.13. Table of Contents; Headings................................ 101
ARTICLE 14
Security Forms
SECTION 14.01. Forms Generally............................................ 101
SECTION 14.02. Form of Face of Security................................... 103
SECTION 14.03. Form of Reverse of Security................................ 110
SECTION 14.04. Form of Trustee's Certificate of Authentication............ 116
EXHIBIT A -- Form of Exchange Security or Private Exchange Security
ANNEX A -- Form of Regulation S Certificate
ANNEX B -- Form of Restricted Securities Certificate
ANNEX C -- Form of Unrestricted Securities Certificate
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INDENTURE dated as of May 1, 1998, among OCTEL
DEVELOPMENTS PLC, a company organized under the laws of
England and Wales (the "Company"), OCTEL CORP., a Delaware
corporation (the "Guarantor" or "Parent"), and IBJ ▇▇▇▇▇▇▇▇
BANK & TRUST COMPANY, 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 the Company's 10% Senior Notes
due 2006 (the "Initial Securities") and, if and when issued pursuant to a
registered exchange for Initial Securities, the Company's 10% Senior Notes due
2006 (the "Exchange Securities") and if and when issued pursuant to a private
exchange for Initial Securities, the Company's 10% Senior Notes due 2006 (the
"Private Exchange Securities", together with the Exchange Securities and the
Initial Securities, the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) in a Related Business; (ii) 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 (iii)
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 (ii) or (iii) above is primarily engaged in a
Related Business.
"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
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Sections 4.04, 4.06 and 4.07 only, "Affiliate" shall also mean any beneficial
owner of Capital Stock representing 5% or more of the total voting power of the
Voting Stock (on a fully diluted basis) of Parent or of rights or warrants to
purchase such Capital 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.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, Euroclear and Cedel, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Asset Disposition" means any sale, lease (other than operating leases
entered into in the ordinary course of business), transfer or other disposition
(or series of related sales, leases, transfers or dispositions) by Parent 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 (i) 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 Parent or a
Restricted Subsidiary), (ii) all or substantially all the assets of any division
or line of business of Parent or any Restricted Subsidiary or (iii) any other
assets of Parent or any Restricted Subsidiary outside of the ordinary course of
business of Parent or such Restricted Subsidiary; provided, however, that Asset
Disposition shall not include (A) a disposition by a Restricted Subsidiary to
Parent or by Parent or a Restricted Subsidiary to a Restricted Subsidiary, (B)
for purposes of Section 4.06 only, a disposition that constitutes a Restricted
Payment permitted by Section 4.04, (C) disposition of assets with a fair market
value of less than $250,000, (D) the disposition of all or substantially all of
the assets of Parent or the Company as permitted under Article V, (E) the
factoring of accounts receivable arising in the ordinary course of business
pursuant to arrangements customary in the industry, (F) the licensing of
intellectual property and (G) disposals or replacements of obsolete,
uneconomical, negligible, worn out or surplus property in the ordinary course of
business.
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"Attributable Debt" in respect of a Sale/Leaseback Transaction means, as
at the time of determination, the present value (discounted at the interest
rate borne by the Securities, compounded annually) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease
has been extended).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) 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
redemption or similar payment with respect to such Preferred Stock multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Bank Indebtedness" means all Obligations pursuant to the Credit
Agreement.
"Banks" has the meaning specified in 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 such Board; provided,
however, that "Board of Directors" means the Board of Directors of Parent when
designated as such.
"Book-Entry Depositary" means The Industrial Bank of Japan (Luxembourg)
S.A. in its capacity as book-entry depositary pursuant to the terms of the
Deposit Agreement, until a successor Book-Entry Depositary shall have become
such pursuant to the terms of the Deposit Agreement, and thereafter "Book-Entry
Depositary" shall mean such successor Book-Entry Depositary.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" means an obligation that is required to be
classified and accounted for as a capital 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
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payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participation or other equivalents of or
interests in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.
"Change of Control" means the occurrence of any of the following events:
(i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of
this clause (i) 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 40% of the total voting
power of the Voting Stock of Parent; provided that a Change of Control
shall be deemed not to have occurred where (through a merger,
consolidation or other transaction) Parent becomes a Wholly Owned
Subsidiary of a holding company substantially all of the Voting Stock of
which is held by shareholders of Parent immediately prior to such
transaction (a "Parent Reorganization");
(ii) individuals who on the Issue Date constituted the Board of
Directors of the Company or Parent, as the case may be (together with any
new directors whose election by such Board of Directors of the Company or
Parent, as the case may be, or whose nomination for election by the
shareholders of the Company or Parent, as the case may be, was approved
by a vote of 66 2/3% of the directors of the Company or Parent, as the
case may be, then still in office who were either directors on the Issue
Date or whose election or nomination for election was previously so
approved), cease for any reason to constitute a majority of the Board of
Directors of the Company or Parent, as the case may be, then in office;
(iii) the merger or consolidation of Parent with or into another
Person or the merger of another Person
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with or into Parent, or the sale of all or substantially all the assets
of Parent to another Person, and, in the case of any such merger or
consolidation, the securities of Parent that are outstanding immediately
prior to such transaction and which represent 100% of the aggregate
voting power of the Voting Stock of Parent are changed into or exchanged
for cash, securities or property, unless pursuant to such transaction
such securities are changed into or exchanged for, in addition to any
other consideration, securities of the surviving corporation that
represent immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving corporation;
provided that a Change of Control shall be deemed not to have occurred
solely as a result of a Parent Reorganization;
(iv) the failure at any time by (A) Parent to beneficially own (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, 100% of the Voting Stock of the Company and, after the
occurrence of the Spinoff, Octel or (B) the Company to beneficially own
(as so defined), directly or indirectly, at least 98.78% of Octel; or
(v) the adoption of a plan relating to the liquidation or
dissolution of Parent or the Company.
For the avoidance of doubt, the occurrence of the Spinoff shall not
constitute a Change of Control.
"Code" means the Internal Revenue Code of 1986, as amended.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Securities.
"Comparable Treasury Price" means with respect to any Redemption Date for
the Securities (i) the average of three Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee
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obtains fewer than three such Reference Treasury Dealer Quotations, the average
of all such quotations.
"Consolidated Debt to EBITDA Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of Indebtedness of Parent and its
Restricted Subsidiaries calculated on a consolidated basis as of the end of the
most recent fiscal quarter for which financial statements are publicly
available prior to the date of such determination (such fiscal quarter being
herein called the "most recent fiscal quarter") to (ii) EBITDA for the four
consecutive fiscal quarters ending with the most recent fiscal quarter for
which financial statements are publicly available (the "Reference Period");
provided, however, that
(1) if Parent or any Restricted Subsidiary has Incurred any
Indebtedness since the end of the Reference Period that remains
outstanding or if the transaction giving rise to the need to calculate
the Consolidated Debt to EBITDA Ratio is an Incurrence of Indebtedness,
the amount of such Indebtedness shall be calculated after giving effect
on a pro forma basis to such Indebtedness as if such Indebtedness had
been outstanding as of the end of the most recent fiscal quarter and to
the discharge of any other Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of such new Indebtedness as if
such new Indebtedness had been Incurred and such other Indebtedness had
been discharged as of the end of such fiscal quarter;
(2) if Parent or any Restricted Subsidiary has repaid, repurchased,
defeased or otherwise discharged any Indebtedness that was outstanding as
of the end of the most recent fiscal quarter or if any Indebtedness that
was outstanding as of the end of the most recent fiscal quarter is to be
repaid, repurchased, defeased or otherwise discharged on the date of the
transaction giving rise to the need to calculate the Consolidated Debt to
EBITDA Ratio (other than, in each case, Indebtedness Incurred under any
revolving credit agreement unless such Indebtedness has been permanently
repaid and has not been replaced), the aggregate amount of Indebtedness
shall be calculated on a pro forma basis as if such discharge has
occurred as of the end of the most recent fiscal quarter and EBITDA shall
be calculated as if Parent or such Restricted Subsidiary had not earned
the interest income, if any, actually earned during the Reference Period
in respect of cash
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or Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness;
(3) if since the beginning of the Reference Period (including on
the date of the transaction giving rise to the need to calculate the
Consolidated Debt to EBITDA Ratio) Parent or any Restricted Subsidiary
shall have made any Asset Disposition, the EBITDA for the Reference
Period shall be reduced by an amount equal to the EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for the Reference Period or increased by an amount equal to
the EBITDA (if negative) directly attributable thereto for the Reference
Period;
(4) if since the beginning of the Reference Period (including on
the date of the transaction giving rise to the need to calculate the
Consolidated Debt to EBITDA Ratio) Parent or any Restricted Subsidiary
(by merger or otherwise) shall have made an Investment in any Restricted
Subsidiary (or any Person which becomes a Restricted Subsidiary) or an
acquisition of assets which constitutes all or substantially all of an
operating unit of a business, EBITDA for the Reference 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 the Reference Period (and irrespective of
the method (purchase or pooling) of accounting for such Investment or
acquisition of assets); and
(5) if since the beginning of the Reference Period (including on
the date of the transaction giving rise to the need to calculate the
Consolidated Debt to EBITDA Ratio) any Person (that subsequently became a
Restricted Subsidiary or was merged with or into Parent or any Restricted
Subsidiary since the beginning of such Reference Period) shall have made
any Asset Disposition, any Investment or acquisition of assets that would
have required an adjustment pursuant to clause (3) or (4) above if made
by Parent or a Restricted Subsidiary during the Reference Period, EBITDA
for the Reference Period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition
occurred on the first day of the Reference Period.
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For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of EBITDA 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 Parent. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest of 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 in excess of
12 months).
"Consolidated Interest Expense" means, for any period, the total interest
expense of Parent and its consolidated Restricted Subsidiaries, plus, to the
extent not included in such total interest expense, and to the extent incurred
by Parent or its Restricted Subsidiaries, without duplication, (i) interest
expense attributable to capital leases and the interest expense attributable to
leases constituting part of a Sale/Leaseback Transaction, (ii) amortization of
debt discount and debt issuance cost, (iii) capitalized interest, (iv) non-cash
interest expenses, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi) net
costs associated with Hedging Obligations (including amortization of fees),
(vii) Preferred Stock dividends (other than dividends paid in Capital Stock of
Parent (other than Disqualified Stock)) in respect of all Preferred Stock of
Parent or a Restricted Subsidiary held by Persons other than Parent or a Wholly
Owned Subsidiary, (viii) interest incurred in connection with Investments in
discontinued operations, (ix) interest accruing on any Indebtedness of any
other Person to the extent such Indebtedness is Guaranteed by (or secured by
the assets of) Parent or any Restricted Subsidiary and (x) 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 Parent) in connection with Indebtedness Incurred
by such plan or trust.
"Consolidated Net Income" means, for any period, the net income of Parent
and its consolidated Subsidiaries; provided, however, that there shall not be
included in such Consolidated Net Income:
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(i) any net income of any Person (other than Parent) if such Person
is not a Restricted Subsidiary, except that (A) subject to the exclusion
contained in clause (iv) below, Parent'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 Parent or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution paid to a Restricted Subsidiary, to the limitations
contained in clause (iii) below) and (B) Parent's equity in a net loss of
any such Person for such period shall be included in determining such
Consolidated Net Income;
(ii) any net income (or loss) of any Person acquired by Parent or a
Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(iii) any net income 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 Parent; provided, however, that (A)
subject to the exclusion contained in clause (iv) below, Parent'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 Parent or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
paid to another Restricted Subsidiary, to the limitation contained in this
clause) and (B) Parent's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income; provided further, however, that, for purposes of
determining whether an Incurrence of Indebtedness (1) by Parent will be
permitted pursuant to Section 4.03, the entire net income of each
Restricted Subsidiary that is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions to
Parent will be included in determining Consolidated Net Income so long as
the agreements or instruments imposing such restrictions (including with
respect to the Indebtedness being Incurred) permit such Restricted
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Subsidiary to pay dividends or make distributions sufficient to pay
interest on the Indebtedness being Incurred and any other Indebtedness of
Parent in existence as of the date of determination and (2) by a
Restricted Subsidiary (including the Company) (the "Borrowing Subsidiary")
will be permitted pursuant to Section 4.03, the entire net income of the
Borrowing Subsidiary will be included in determining Consolidated Net
Income and the entire net income of each Restricted Subsidiary that is a
Subsidiary of the Borrowing Subsidiary and that is subject to
restrictions, directly or indirectly, on the payment of dividends or the
making of distributions to Parent will be included in determining
Consolidated Net Income so long as the agreements or instruments imposing
such restrictions (including with respect to the Indebtedness being
Incurred) permit such Restricted Subsidiary to pay dividends or make
distributions sufficient to pay interest on the Indebtedness being
Incurred and any other Indebtedness of the Borrowing Subsidiary and
Indebtedness of Parent in existence as of the date of determination;
(iv) any gain (but not loss) realized upon the sale or other
disposition of any assets of Parent, its consolidated Subsidiaries or any
other Person (including pursuant to any sale-and-leaseback arrangement)
which is not sold or otherwise disposed of in the ordinary course of
business and any gain (but not loss) realized upon the sale or other
disposition of any Capital Stock of any Person together with any related
tax effects according to GAAP associated with the foregoing;
(v) extraordinary gains or losses; and
(vi) the cumulative effect of a change in accounting principles.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of Parent and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of Parent ending at least 45 days prior to the taking of any
action for the purpose of which the determination is being made, as (i) the par
or stated value of all outstanding Capital Stock of Parent plus (ii) paid-in
capital or capital surplus relating to such Capital Stock plus (iii) any
retained earnings or earned
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surplus less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Stock.
"Credit Agreement" means the Facility Agreement dated April 27, 1998, by
and among Octel, certain of its Subsidiaries, the lenders referred to therein,
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P. and Barclays Bank PLC, as joint
arrangers and joint syndication agents, together with the related documents
thereto (including the term loans and revolving loans thereunder, any guarantees
and security documents), as amended, extended, renewed, restated, supplemented
or otherwise modified (in whole or in part, and without limitation as to amount,
terms, conditions, covenants and other provisions) from time to time, and any
agreement (and related document) governing Indebtedness incurred to refund or
refinance, in whole or in part, the borrowings and commitments then outstanding
or permitted to be outstanding under such Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Deposit Agreement" means the Note Deposit Agreement, dated as of the date
hereof, between the Company, the Guarantor and The Industrial Bank of Japan
(Luxembourg) S.A., as Book-Entry Depositary, with respect to the Global
Securities, as amended from time to time in accordance with the terms thereof.
"Depositary" means, with respect to the Securities issuable or issued in
whole or in part in the form of one or more Global Securities, The Depository
Trust Company for so long as it shall be a clearing agency registered under the
Exchange Act, or such successor as the Company shall designate from time to time
in an Officers' Certificate delivered to the Trustee.
"Depositary Interest" means a certificateless depositary interest
representing a 100% beneficial interest in a Global Security.
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"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 upon the happening of any event (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or
(iii) is redeemable or must be purchased, upon the occurrence of certain events
or otherwise, by such Person at the option of the holder thereof, in whole or in
part, in each case on or prior to the first anniversary of 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
first anniversary of the Stated Maturity of the Securities shall not constitute
Disqualified Stock if (x) 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 4.09 and (y) any such
requirement only becomes operative after compliance with such terms applicable
to the Securities, including the purchase of any Securities tendered pursuant
thereto.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
Consolidated Interest Expense plus the following to the extent deducted in
calculating such Consolidated Net Income: (a) all income tax expense of Parent
and its consolidated Restricted Subsidiaries, (b) depreciation expense of Parent
and its consolidated Restricted Subsidiaries, (c) amortization expense of Parent
and its consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period) and (d) all
other non-cash charges of Parent and its consolidated Restricted Subsidiaries
(excluding any such non-cash charge to the extent that it represents an accrual
of or reserve for cash expenditures in any future period), in each case for such
period. EBITDA shall be increased or decreased, as the case may be, to the
extent of non-cash reductions or increases, respectively, in Consolidated Net
Income in such period due solely to fluctuations in currency values and the
related tax effects according to GAAP. Notwithstanding the foregoing, the
provision for taxes based on the income or profits of, and the depreciation and
amortization and non-cash charges of, a Restricted Subsidiary shall be added to
Consolidated Net Income to compute EBITDA only to the
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extent (and in the same proportion) that the net income of such Restricted
Subsidiary was included in calculating Consolidated Net Income.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Issue Date, including those set forth in (i)
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the 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. Any accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP.
"Global Security" means the security or securities issued initially in
bearer form that evidences all or part of the Securities and bears the legend
set forth in Section 14.02.
"Great Lakes" means Great Lakes Chemical Corporation, a Delaware
corporation.
"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 (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however,
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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 Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means the several persons who are for the
time being holders of the Securities (being, in the case of Definitive
Securities the several persons whose names are entered in the register of
Holders of the Definitive Securities as the holders thereof) which expression
shall, while any Global Security remains outstanding, mean in relation to the
Securities represented thereby each person who is for the time being shown in
the records of DTC, Euroclear or of Cedel Bank as the holder of a particular
Book-Entry Interest in respect of such Securities (in which regard any
certificate or other document issued by DTC, Euroclear or Cedel Bank as to the
principal amount of Securities represented by a Global Security standing to the
account of any person shall be conclusive and binding for all purposes) for all
purposes other than with respect to the payment of principal, premium, if any,
and interest on such Securities, the right to which shall be vested, as against
the Company, solely in the bearer of such Global Security (being at the Issue
Date the Book-Entry Depositary) in accordance with and subject to its terms and
the terms of the Indentures and the words "holder" and "holders" and related
expressions shall (where appropriate) be construed accordingly.
"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
Subsidiary at the time it becomes a 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):
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(i) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
(ii) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into
by such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary
course of business);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit or
performance bonds securing obligations (other than obligations described
in clauses (i) through (iii) above) entered into in the ordinary course
of business of such Person to the extent such letters of credit or
performance bonds are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth Business Day following
payment on the letter of credit or performance bond);
(v) 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, the liquidation preference
with respect to, any Preferred Stock (but excluding, in each case, any
accrued dividends);
(vi) all obligations of the type referred to in clauses (i) through
(v) 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;
(vii) all obligations of the type referred to in clauses (i) through
(vi) of other Persons secured by
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any Lien on any property or asset of such Person (whether or not such obligation
is assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; and
(viii) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and
the maximum liability, upon the occurrence of the contingency giving rise to
the obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Trustee after consultation
with the Company.
"Indirect Participant" means a Person who holds an interest through a
Participant in a Depositary Interest issued by the Book-Entry Depositary to the
Depositary.
"Initial Purchasers" means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ Brothers Inc. and
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
"Interest Payment Date" means the date an installment of interest on the
Securities is due.
"Interest Rate Agreement" means in respect of a Person any interest rate
swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"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
extensions 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,
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Indebtedness or other similar instruments issued by such Person. For purposes
of the definition of "Unrestricted Subsidiary", the definition of "Restricted
Payment" and Section 4.04, (i) "Investment" shall include the portion
(proportionate to Parent's equity interest in such Subsidiary) of the fair
market value of the net assets of any Subsidiary of Parent at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Parent
shall be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) Parent's "Investment"
in such Subsidiary at the time of such redesignation less (y) the portion
(proportionate to Parent's equity interest in such Subsidiary) of the fair
market value of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors.
"Issue Date" means the date on which the Securities are originally issued.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (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 such properties or assets or
received in any other noncash form), in each case net of (i) all legal,
accounting and investment banking fees, and sales commissions and all other
legal, title and recording tax expenses, commissions and other fees and
expenses incurred, and all Federal, state, provincial, foreign and local taxes
required to be accrued as a liability under GAAP, as a consequence of such
Asset Disposition, (ii) 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
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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, (iii) all distributions and other payments required to be
made to minority interest holders in Restricted Subsidiaries as a result of
such Asset Disposition and (iv) the deduction of appropriate amounts provided
by the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the property or other assets disposed in such Asset Disposition
and retained by Parent 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, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Obligations" means with respect to any Indebtedness all obligations for
principal, premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"Octel" means Octel Associates and any successor Person.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, the Managing Director, the Chief Financial Officer, the Finance
Director, the General Counsel, any Vice President, the Treasurer or the
Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, Parent or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and,
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with respect to the Depositary, shall include Euroclear and Cedel).
"Permitted Investment" means an Investment by Parent or any Restricted
Subsidiary in (i) Parent, 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 Related
Business; (ii) 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, Parent or a Restricted Subsidiary; provided,
however, that such Person's primary business is a Related Business; (iii)
Temporary Cash Investments; (iv) receivables owing to Parent 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
Parent or any such Restricted Subsidiary deems reasonable under the
circumstances; (v) 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;
(vi) loans or advances to employees made in the ordinary course of business
consistent with past practices of Parent or such Restricted Subsidiary; (vii)
stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to Parent or any Restricted Subsidiary or
in satisfaction of judgments; (viii) any Investment in any Person to the extent
such Investment represents the non-cash portion of the consideration received
for an Asset Disposition as permitted pursuant to Section 4.06; (ix)
Investments existing on the date of this Indenture; (x) Hedging Obligations
otherwise in compliance with the Indenture; and (xi) Investments the total
payment for which consists exclusively of Capital Stock (excluding Disqualified
Stock) of Parent.
"Permitted Liens" means, with respect to any Person, (a) liens, pledges or
deposits by such Person under workers' compensation laws, unemployment
insurance and other types of social security laws or similar legislation, or
good faith deposits in connection with bids, tenders, contracts (other than for
the payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits
of cash or government bonds to secure surety or
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20
appeal bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent, in each case
Incurred in the ordinary course of business; (b) statutory liens of landlords
and other Liens imposed by law, including carriers', warehousemen's,
supplier's, materialmen's, repairmen's and mechanics' Liens, in each case for
sums not yet due or being contested in good faith or other Liens arising out of
judgments or awards against such Person with respect to which such Person shall
then be proceeding with an appeal or other proceedings for review; (c) liens
for taxes, assessments or governmental charges not yet subject to penalties for
non-payment, or which are being contested in good faith; (d) ▇▇▇▇▇ in favor of
issuers of surety bonds or letters of credit issued pursuant to the request of
and for the account of such Person in the ordinary course of its business;
provided, however, that such letters of credit do not constitute Indebtedness;
(e) minor survey exceptions, minor encumbrances, easements or reservations of,
or rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real property or Liens incidental to the conduct
of the business of such Person or to the ownership of its properties which were
not Incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person; (f) Liens securing
Indebtedness Incurred to finance the construction, purchase or lease of, or
repairs, improvements or additions to, property of such Person; provided,
however, that the Lien may not extend to any other property owned by such
Person or any of its Subsidiaries at the time the Lien is Incurred, and the
Indebtedness (other than any interest thereon) secured by the Lien may not be
Incurred more than 180 days after the later of the acquisition, completion of
construction, repair, improvement, addition or commencement of full operation
of the property subject to the Lien; (g) Liens to secure Indebtedness of
Restricted Subsidiaries (other than the Company) permitted under Section 4.03;
(h) Liens existing on the Issue Date; (i) Liens on property or shares of
Capital Stock of another Person at the time such other Person becomes a
Subsidiary of such Person; provided, however, that such Liens are not created,
incurred or assumed in connection with, or in contemplation of, such other
Person becoming such a Subsidiary; provided further, however, that such Lien
may not extend to any other property owned by such Person or any of its
Subsidiaries; (j) Liens on property at
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the time such Person or any of its Subsidiaries acquires the property,
including any acquisition by means of a merger or consolidation with or into
such Person or a Subsidiary of such Person; provided, however, that such Liens
are not created, incurred or assumed in connection with, or in contemplation
of, such acquisition; provided further, however, that the Liens may not extend
to any other property owned by such Person or any of its Subsidiaries; (k)
Liens securing intercompany indebtedness of a Restricted Subsidiary of Parent
other than the Company on assets of any Subsidiary of Parent other than the
Company; (l) Liens securing Hedging Obligations so long as such Hedging
Obligations relate to Indebtedness that is, and is permitted to be under the
Indenture, secured by a Lien on the same property securing such Hedging
Obligations; (m) Liens to secure any Refinancing (or successive Refinancings)
as a whole, or in part, of any Indebtedness secured by any Lien referred to in
the foregoing clauses (f), (h), (i) and (j); provided, however, that (x) such
new Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements to or on such property) and (y) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (f), (h), (i) or
(j) at the time the original Lien became a Permitted Lien and (B) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement; (n) judgment Liens
not giving rise to an Event of Default; (o) an interest or title of a lessor
under any Capitalized Lease Obligation; (p) Liens on specific items of
inventory or other goods and proceeds of any Person securing such Person's
obligations in respect of bankers' acceptances issued or created for the
account of such Person to facilitate the purchase, shipment, or storage of such
inventory or other goods Incurred in the ordinary course of business; (q) Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof Incurred in the ordinary course of business;
(r) Liens incurred with respect to obligations that do not in the aggregate
exceed $10.0 million at any one time outstanding; (s) leases or subleases
granted to others that do not materially interfere with the ordinary course of
business of Parent and its Restricted Subsidiaries; and (t) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
custom duties so long as the underlying obligations are not
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in default or are being contested in good faith. Notwithstanding the
foregoing, "Permitted Liens" will not include any Lien described in clauses
(f), (i) or (j) above to the extent such Lien applies to any Additional Assets
acquired directly or indirectly from Net Available Cash pursuant to Section
4.06. For purposes of this definition, the term "Indebtedness" shall be deemed
to include interest on such Indebtedness.
"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.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred
as to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over 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.
"Recognized Stock Exchange" means a recognized Stock exchange within the
meaning of Section 841 of the U.K. Income and Corporation Taxes Act 1988.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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"Reference Treasury Dealer" means any nationally recognized primary U.S.
Government securities dealer in New York City.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
"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 Refinances any
Indebtedness of Parent or any Restricted Subsidiary existing on the Issue Date
or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such 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 and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs associated with the Refinancing) under the Indebtedness being
Refinanced; provided further, however, that Refinancing Indebtedness shall not
include Indebtedness of a Subsidiary that Refinances Indebtedness of Parent.
"Regular Record Date" for the interest payable on any Interest Payment Date
means April 15 or October 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
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"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the form
set forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section 14.01.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Security set forth in Section 14.02 to be placed
upon each Regulation S Security.
"Regulation S Securities" means all Securities sold pursuant to Regulation
S, which are required pursuant to Section 2.13(c) to bear a Regulation S Legend.
Such term includes the Regulation S Global Security.
"Related Business" means any business related, ancillary or complementary
to the businesses of Parent, the Company and the Restricted Subsidiaries on the
Issue Date.
"Reorganization" means the final reorganization of the corporate and
partnership entities of Parent and its subsidiaries, including Parent, prior to
or concurrently with the Spinoff.
"Representative" means any trustee, agent or representative (if any) for
an issue of Bank Indebtedness.
"Restricted Payment" with respect to any Person means (i) the declaration
or payment of any dividends or any other distributions of any sort in respect
of its Capital Stock (including any payment in connection with any merger or
consolidation involving such Person) or similar payment to the direct or
indirect holders of its Capital Stock (other than dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock) and
dividends or distributions payable solely to Parent or a Restricted Subsidiary,
and other than pro rata dividends or other distributions made by a Subsidiary
that is not a Wholly Owned Subsidiary to minority stockholders (or owners of an
equivalent interest in the case of a Subsidiary that is an entity other than a
corporation)), (ii) the purchase, redemption or other acquisition or retirement
for value of any Capital Stock of Parent held by any Person or of any Capital
Stock of a Restricted Subsidiary held by any
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Affiliate of Parent (other than a Restricted Subsidiary), including the
exercise of any option to exchange any Capital Stock (other than into Capital
Stock of Parent that is not Disqualified Stock), (iii) the purchase,
repurchase, redemption, defeasance or other acquisition or retirement for
value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment of any Subordinated Obligations (other than the purchase,
repurchase, or other acquisition of Subordinated Obligations purchased 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
(iv) the making of any Investment in any Person (other than a Permitted
Investment).
"Restricted Securities" means all Securities required pursuant to Section
2.13(c) to bear any Restricted Securities Legend. Such term includes any
Restricted Global Security.
"Restricted Securities Certificate" means a certificate substantially in
the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms of the legends required in the form of Security set
forth in Section 14.02 to be placed upon each Restricted Security.
"Restricted Subsidiary" means any Subsidiary of Parent that is not an
Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit facility contained
in the Credit Agreement and any other facility or financing arrangement that
Refinances, in whole or in part, any such revolving credit facility.
"Restricted Period" means the period of 41 consecutive days beginning on
and including the later of (i) the day on which Securities are first offered to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the original issuance date of the Securities.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Securities" means all Securities sold pursuant to Rule 144A,
which are required pursuant to
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Section 2.13(c) to bear a Restricted Securities Legend. Such term includes the
Restricted Global Security.
"Sale/Leaseback Transaction" means an arrangement
relating to property now owned or hereafter acquired whereby Parent or a
Restricted Subsidiary transfers such property to a Person and Parent or a
Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 2.13.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"Significant Subsidiary" of Parent within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Special Interest" has the meaning set forth in the form of Security
contained in Section 14.02. Unless the context otherwise requires, references
herein to "interest" on the Securities shall include Special Interest.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.14.
"Spinoff" means the distribution of shares of the common stock of Parent to
the holders of common stock of Great Lakes.
"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
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of the holder thereof upon the happening of any contingency unless such
contingency has occurred).
"Subordinated Obligation" means any Indebtedness of Parent or the Company
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Parent Guaranty or the
Securities, as applicable, pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership 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 (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Successor Security" of any particular Security means every Security issued
after, and evidencing all or a portion of the same debt as that evidenced by,
such particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Temporary Cash Investments" means any of the following: (i) any
investment in direct obligations of the United Kingdom or the United States of
America or any agency thereof or obligations guaranteed by the United Kingdom or
the United States of America or any agency thereof, (ii) 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 which is organized under the laws of the United Kingdom, the United
States of America, any state thereof or any foreign country recognized by the
United Kingdom or the United States of America, and which bank or trust company
has capital, surplus and undivided profits aggregating in excess of $50,000,000
(or the foreign currency equivalent thereof) and has outstanding debt that 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),
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(iii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) above entered into
with a bank meeting the qualifications described in clause (ii) above, (iv)
investments in commercial paper, maturing not more than 90 days after the date
of acquisition, issued by a corporation (other than an Affiliate of Parent)
organized and in existence under the laws of the United Kingdom, the United
States of America or any foreign country recognized by the United Kingdom or
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
Group, and (v) 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 Standard &
Poor's Ratings Group or "A" by ▇▇▇▇▇'▇ Investors Service, Inc.
"Term Loan Facility" means the term loan facility contained in the Credit
Agreement and any other facility or financing arrangement that Refinances in
whole or in part any such term loan facility.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Treasury Rate" means, with respect to any Redemption Date for the
Securities, (i) the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which
is published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities",
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the maturity date of the Securities,
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or
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does not contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, calculated using
a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such Redemption
Date. The Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code as in
effect from time to time.
"Unrestricted Securities Certificate" means a certificate substantially in
the form set forth in Annex C.
"Unrestricted Subsidiary" means (i) any Subsidiary of Parent other than
the Company that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner provided below
and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors
may designate any Subsidiary of Parent (other than the Company, but including
any newly acquired or newly formed Subsidiary) 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, Parent or any
other Subsidiary of Parent that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.04. The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation (x) Parent could Incur $1.00 of additional Indebtedness
under Section 4.03(a) and (y) no Default shall have occurred and be continuing.
Any such designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the resolution of the
Board of Directors giving effect to such designation and
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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 and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"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 all the Capital
Stock of which (other than directors' qualifying shares) is owned by Parent or
one or more Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction" ................ 4.08
"Bankruptcy Law" ....................... 6.01
"Blockage Notice" ...................... 10.01
"covenant defeasance option" ........... 8.01(b)
"Custodian" ............................ 6.01
"Event of Default" ..................... 6.01
"legal defeasance option" .............. 8.01(b)
"Legal Holiday" ........................ 13.08
"Offer" ................................ 4.06(b)
"Offer Amount" ......................... 4.06(c)(2)
"Offer Period" ......................... 4.06(c)(2)
"Parent Blockage Notice" ............... 12.01
"Parent Payment Blockage Period" ....... 12.01
"pay the Securities" ................... 10.01
"Paying Agent" ......................... 2.03
"Payment Blockage Period" .............. 10.01
"Purchase Date" ........................ 4.06(c)(1)
"Registrar"............................. 2.03
"Successor Company" .................... 5.01
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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;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as
unsecured Indebtedness;
(7) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a
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balance sheet of the issuer dated such date prepared in accordance with
GAAP;
(8) 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; and
(9) all references to the date the Securities were originally issued
shall refer to the date the Initial Securities were originally issued.
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating. The Initial Securities and the Trustee's
certificate of authentication shall be substantially in the form set forth in
Article 14. The Exchange Securities, the Private Exchange Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Security shall be dated the date of its
authentication. The terms of the Securities set forth in Exhibit A are part of
the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall sign the
Securities for the Company by manual or facsimile signature.
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.
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The Trustee shall authenticate and deliver Securities for original issue
in an aggregate principal amount of $150,000,000, upon a written order of the
Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall specify
the amount of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed that amount except
as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate the Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as any Registrar, Paying Agent or agent for service of notices
and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
7.07. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer
agent.
The Company initially appoints the Trustee as Registrar and Paying Agent
in connection with the Securities.
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SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each due date
of the principal and interest on any Security, the Company shall deposit with
the Paying Agent a sum sufficient to pay such principal and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing within seven Business Days of such request, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be transferable
in accordance with the provisions of Section 2.13.
SECTION 2.07. Replacement Securities. If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of written notice to
the Company or the Trustee that such Security has been acquired by a bona fide
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purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. 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 cancellation and those described in this Section as
not outstanding. A Security does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
each of them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Securities
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(or portions thereof) to be redeemed or maturing, as the case may be, and the
Paying Agent is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture, then on and after that date
such Securities (or portions thereof) cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for temporary Securities.
SECTION 2.10. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, the Company shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP and ISIN Numbers. The Company in issuing the
Securities may use "CUSIP" or "ISIN" numbers (if then generally in use) and, if
so, the Trustee
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shall use "CUSIP" or "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.
SECTION 2.13. Registration, Registration of Transfer and Exchange. (a)
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency designated pursuant to Section 2.03 being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Definitive Securities and of transfers of such Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering such
Securities and transfers of such Securities as herein provided. Such Security
Register shall distinguish between Original Securities and Exchange Securities.
Subject to the other provisions of this Indenture regarding restrictions
on transfer, upon surrender for registration of transfer of any Definitive
Security at an office or agency of the Company designated pursuant to Section
2.03 for such purpose in accordance with the terms hereof, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like tenor and aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of this
Section 2.13, Securities may be exchanged for other Securities of any
authorized denominations and of a like tenor and aggregate principal amount,
upon surrender of such Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid
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obligations of the Company, evidencing the same debt, and (subject to the
provisions in the Initial Securities regarding the payment of Special Interest)
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 2.09, 2.13(d), or 3.06 or
in accordance with any offer to purchase pursuant to Section 4.06 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 3.02 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other provision
of this Indenture or the Securities, transfers and exchanges of Securities and
beneficial interests in a Global Security of the kinds specified in this
Section 2.13(b) shall be made only in accordance with this Section 2.13(b).
(i) Restricted Global Security to Regulation S Global Security. If
the owner of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected only in accordance with
the provisions of this Clause (b)(i) and Clause (b)(v) below and subject
to the Applicable Procedures. Upon receipt by the
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Trustee, as Security Registrar, of (A) an order given by the Depositary or
its authorized representative directing that a beneficial interest in the
Regulation S Global Security in a specified principal amount be credited
to a specified Agent Member's account and that a beneficial interest in
the Restricted Global Security in an equal principal amount be debited
from another specified Agent Member's account and (B) a Regulation S
Certificate, satisfactory to the Trustee and duly executed by the owner of
such beneficial interest in the Restricted Global Security or his attorney
duly authorized in writing, then the Trustee, as Security Registrar but
subject to Clause (b)(v) below, shall reduce or cause to be reduced the
principal amount of the Restricted Global Security and increase the
principal amount of the Regulation S Global Security by such specified
principal amount as provided in Section 2.13(e).
(ii) Regulation S Global Security to Restricted Global Security. If
the owner of a beneficial interest in the Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Restricted
Global Security, such transfer may be effected only in accordance with
this Clause (b)(ii) and subject to the Applicable Procedures. Upon
receipt by the Trustee, as Security Registrar, of (A) an order given by
the Depositary or its authorized representative directing that a
beneficial interest in the Restricted Global Security in a specified
principal amount be credited to a specified Agent Member's account and
that a beneficial interest in the Regulation S Global Security in an equal
principal amount be debited from another specified Agent Member's account
and (B) if such transfer is to occur during the Restricted Period, a
Restricted Securities Certificate, satisfactory to the Trustee and duly
executed by the owner of such beneficial interest in the Regulation S
Global Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce or cause to be reduced the
principal amount of the Regulation S Global Security and increase the
principal amount of the Restricted Global Security by such specified
principal amount as provided in Section 2.13(e).
(iii) Definitive Security to Definitive Security. A Security that
is a Definitive Security may
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be transferred, in whole or in part, to a Person who takes delivery in the
form of another Security that is a Definitive Security as provided in
Section 2.13(a), provided that, if the Security to be transferred in whole
or in part is a Restricted Security, or is a Regulation S Security and the
transfer is to occur during the Restricted Period, then the Trustee shall
have received (A) a Restricted Securities Certificate, satisfactory to the
Trustee and duly executed by the transferor Holder or his attorney duly
authorized in writing, in which case the transferee Holder shall take
delivery in the form of a Restricted Security, or (B) a Regulation S
Certificate, satisfactory to the Trustee and duly executed by the
transferor Holder or his attorney duly authorized in writing, in which
case the transferee Holder shall take delivery in the form of a Regulation
S Security (subject in every case to Section 2.13(c)).
(iv) Exchanges between Global Security and Definitive Security. A
beneficial interest in a Global Security may be exchanged for a Security
that is a Definitive Security as provided in Section 2.13(d), provided
that, if such interest is a beneficial interest in the Restricted Global
Security, or if such interest is a beneficial interest in the Regulation S
Global Security and such exchange is to occur during the Restricted
Period, then such interest shall be exchanged for a Restricted Security
(subject in each case to Section 2.13(c)).
(v) Regulation S Global Security to be Held Through Euroclear or
Cedel during Restricted Period. The Company shall use its best efforts to
cause the Depositary to ensure that, until the expiration of the
Restricted Period, beneficial interests in the Regulation S Global
Security may be held only in or through accounts maintained at the
Depositary by Euroclear or Cedel (or by Agent Members acting for the
account thereof), and no person shall be entitled to effect any transfer
or exchange that would result in any such interest being held otherwise
than in or through such an account; provided that this Clause (b)(v) shall
not prohibit any transfer or exchange of such an interest in accordance
with Clause (b)(ii) above.
(c) Securities Act Legends. Rule 144A Securities and their Successor
Securities shall bear a Restricted
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Securities Legend, and the Regulation S Securities and their Successor
Securities shall bear a Regulation S Legend, subject to the following:
(i) subject to the following Clauses of this Section 2.13(c), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(ii) subject to the following Clauses of this Section 2.13(c), a new
Security which is a Definitive Security and is issued in exchange for a
Global Security or any portion thereof, upon transfer or otherwise, shall
bear the Securities Act Legend borne by such other Security, provided
that, if such new Security is required pursuant to Section 3.05(b)(iii) or
(iv) to be issued in the form of a Restricted Security, it shall bear a
Restricted Securities Legend and, if such new Security is so required to
be issued in the form of a Regulation S Security, it shall bear a
Regulation S Legend;
(iii) Registered Securities shall not bear a Securities Act Legend;
(iv) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Security which
does not bear a Securities Act Legend may be issued in exchange for or in
lieu of a Security (other than a Global Security) or any portion thereof
which bears such a legend if the Trustee has received an Unrestricted
Securities Certificate, satisfactory to the Trustee and duly executed by
the Holder of such legended Security or his attorney duly authorized in
writing, and after such date and receipt of such certificate, the Trustee
shall authenticate and deliver such a new Security in exchange for or in
lieu of such other Security as provided in this Article 2;
(v) a new Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if, in the
Company's judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with
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the registration requirements of the Securities Act, and the Trustee, at
the direction of the Company, shall authenticate and deliver such a new
Security as provided in this Article 2; and
(vi) notwithstanding the foregoing provisions of this Section
2.13(c), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of Rule
144, in which case the Trustee, at the direction of the Company, shall
authenticate and deliver a new Security bearing a Restricted Securities
Legend in exchange for such Successor Security as provided in this
Article 2.
(d) Exchanges of Global Security for Definitive Security. Transfers of
Global Securities shall be by delivery. The Book-Entry Depositary and the
Company have agreed that the Global Securities shall only be delivered in the
circumstances described in the Deposit Agreement. Notwithstanding any other
provision in this Indenture, no Global Security may be exchanged in whole or in
part for Definitive Securities unless (i) the Depositary notifies the Company or
the Book-Entry Depositary in writing that it (or its nominee) is unwilling or
unable to continue to act as depositary or ceases to be a clearing agency
registered under the Exchange Act, and, in either case, a successor depositary
registered as a clearing agency under the Exchange Act is not appointed by the
Company within 90 days, (ii) at any time if the Company determines that the
Global Securities (in whole but not in part) should be exchanged for Definitive
Securities; provided, that (x) such exchange is required by (A) any applicable
law or (B) any event beyond the Company's control or (y) payments of interest on
any Global Security, Depositary Interest or beneficial interest are, or would
become, subject to any deduction or withholding for taxes, (iii) at any time
after the consummation of the Exchange Offer, if the owner of a beneficial
interest requests such exchange in writing delivered to the Depositary and
through the Depositary to the Book-Entry Depositary and the Trustee, or (iv) if
the Book-Entry Depositary is at any time unwilling or unable to continue as
Book-Entry Depositary and a successor Book-Entry Depositary is not appointed by
the Company within 90 days. Upon the occurrence of any of the preceding events,
Definitive Securities shall be issued in such names as the
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Book-Entry Depositary shall instruct the Trustee based on the instructions of
the Depositary.
(e) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Book-Entry
Depositary or its nominee to the Trustee, as Security Registrar, for exchange or
cancelation as provided in this Article 2. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is to
be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancelation as provided in this Article 2 or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the principal amount of such
other Security to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made by the Book-Entry Depositary
as directed by the Trustee in such Book-Entry Depositary's book-entry system to
the corresponding Depositary Interest, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to
Section 2.13(b) and as otherwise provided in this Article 2, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered (if applicable) in such
names as may be directed by, the Book-Entry Depositary or its authorized
representative. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph, the
Company shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee shall be
entitled to rely upon any order, direction or request of the Book-Entry
Depositary or the Depositary or any of their authorized representatives which is
given or made pursuant to this Article 2 if such order, direction or request is
given or made in accordance with the Depositary Agreement with respect to the
Book-Entry Depositary and the Applicable Procedures with respect to the
Depositary.
SECTION 2.14. Payment of Interest; Interest Rights Preserved. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the bearer thereof on
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the Interest Payment Date in the case of a Global Security in bearer form and,
in the case of a Definitive Security, to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest (including Special Interest) on any Security which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall (a) bear interest at the
rate per annum stated in the form of Security included herein (to the extent
that the payment of such interest shall be legally enforceable), and (b)
forthwith cease to be payable to the bearer thereof on such Interest Payment
Date with respect to a Global Security in bearer form and, with respect to a
Definitive Security, to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and, in each case, such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in Clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the bearer of such Security on any Special Payment Date (as defined
below) with respect to any Global Security in bearer form and, with
respect to a Definitive Security, to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense
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of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid, with respect to any
Definitive Security, to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (b). As used in this Clause (a),
"Special Payment Date" means the date on which Defaulted Interest is paid
to the Holder.
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities in accordance with the terms of the Securities or is required to
redeem Securities in accordance with the terms of the Securities, it shall
notify the Trustee in writing of the redemption date, the principal amount of
Securities to be redeemed and the provision of the Securities pursuant to which
the redemption will occur.
If the Company is required to redeem Securities in accordance with the
terms of the Securities, it may reduce the principal amount of Securities
required to be redeemed
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to the extent it is permitted a credit by the terms of the Securities and it
notifies the Trustee of the amount of the credit and the basis for it. If the
reduction is based on a credit for redeemed or canceled Securities that the
Company has not previously delivered to the Trustee for cancellation, it shall
deliver such Securities with the notice.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed in compliance with the requirements of the Luxembourg Stock
Exchange (for so long as the Securities are listed thereon) or such other stock
exchange on which the Securities are listed or, if such Securities are not so
listed or such exchange prescribes no method of selection, pro rata or by lot or
by a method that complies with applicable legal requirements and that the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Company shall, on a reasonably timely basis, give
written notice of any such securities exchange requirements to the Trustee. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in amounts of $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Securities, the Company shall, so long
as the Securities are listed on the Luxembourg Stock Exchange and the rules of
such stock exchange shall so require, publish in a newspaper having a general
circulation in Luxembourg
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(which is expected to be the Luxemburger Wort) and, in the case of Definitive
Securities, mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such ▇▇▇▇▇▇'s registered address. For so long as
any Securities are represented by the Global Securities, notices to Holders
shall (in addition to publication as described above) also be given by delivery
of the relevant notice to DTC, Euroclear and/or Cedel Bank (as the case may be)
for communication to the relative Holders of the Book-Entry Interests.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed, the
identification and principal amounts of the particular Securities to be
redeemed;
(6) that, unless the Company defaults in making such redemption payment
or the Paying Agent is prohibited from making such payment pursuant to the
terms of this Indenture, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date;
(7) the provision of the Securities pursuant to which the Securities
called for redemption are being redeemed; and
(8) 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.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
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The Trustee shall not be responsible for the accuracy of any such information.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment 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. At least one Business Day
prior to the redemption date, the Company shall deposit with the Paying Agent
(or, if the Company or a Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which have been delivered by the
Company to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
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The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that Parent may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, Parent shall file with the SEC and provide the Trustee and Securityholders
with such annual reports and such information, documents and other reports as
are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a
U.S. corporation subject to such Sections, such information, documents and
reports to be so filed and provided at the times specified for the filing of
such information, documents and reports under such Sections. Parent also shall
comply with the other provisions of TIA Section 314(a).
SECTION 4.03. Limitation on Consolidated Indebtedness. (a) Parent
shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that Parent and its Restricted
Subsidiaries may Incur Indebtedness if, on the date of such Incurrence, the
Consolidated Debt to EBITDA Ratio does not exceed the ratio indicated below:
CONSOLIDATED DEBT
DATE OF INCURRENCE TO EBITDA RATIO
------------------ -------------------
Period ended June 30, 1999 2.00 to 1.0
Period ended June 30, 2000 1.75 to 1.0
Period ended June 30, 2001
and thereafter 1.50 to 1.0
(b) Notwithstanding the foregoing paragraph (a), Parent and its
Restricted Subsidiaries may Incur any or all of the following Indebtedness:
(1) Indebtedness Incurred pursuant to the Term Loan Facility;
provided, however, that, after giving effect to any such Incurrence, the
aggregate principal amount of all Indebtedness Incurred under this clause
(1) and then outstanding does not exceed $280 million less the aggregate
sum of all principal payments actually made from time to time after the
Issue Date with respect to such Indebtedness (other than principal
payments made from any Refinancings thereof);
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(2) Indebtedness Incurred pursuant to the Revolving Credit Facility;
provided, however, that the aggregate principal amount outstanding at any
time under this clause (2) does not exceed $20 million;
(3) Indebtedness which is intercompany Indebtedness between or among
Parent and any of its Restricted Subsidiaries; provided, however, that (i)
any subsequent issuance or transfer of Capital Stock that results in any
such Indebtedness being held by a Person other than Parent or a Restricted
Subsidiary thereof or (ii) any sale or other transfer of any such
Indebtedness to a person that is not either Parent or a Restricted
Subsidiary thereof shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness by Parent or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause (3);
(4) the Securities;
(5) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (2), (3) or (4) of this Section
4.03(b));
(6) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (4) or (5) or this clause
(6); provided, however, that Parent and its Restricted Subsidiaries shall
not Incur any Indebtedness pursuant to this paragraph (b)(6) if the
proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Obligations unless such Indebtedness shall be subordinated to
the Notes to at least the same extent as such Subordinated Obligations;
(7) Hedging Obligations consisting of Interest Rate Agreements and
Currency Agreements directly related to Indebtedness permitted to be
Incurred by Parent or a Restricted Subsidiary pursuant to the Indenture;
(8) Guarantees by Parent and its Restricted Subsidiaries of each
other's Indebtedness; provided that such Indebtedness is permitted to be
incurred under the Indenture; and
(9) other Indebtedness in an aggregate principal amount which,
together with all other Indebtedness of
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Parent and the Restricted Subsidiaries outstanding on the date of such
Incurrence (other than Indebtedness permitted by clauses (1) through (7)
above or Section 4.03(a) does not exceed $10 million.
(c) For purposes of determining compliance with the foregoing
Sections 4.03(a) and (b), (i) in the event that an item of Indebtedness meets
the criteria of more than one of the types of Indebtedness described above,
Parent, in its sole discretion, will classify such item of Indebtedness and only
be required to include the amount and type of such Indebtedness in one of the
above clauses and (ii) an item of Indebtedness may be divided and classified in
more than one of the types of Indebtedness described above.
(d) Neither Parent nor the Company shall Incur any Indebtedness
(exclusive of Hedging Obligations) unless such Indebtedness is subject to
payment blockage provisions that are substantially the same as those described
above under "Payment Blockage" for so long as the Notes are subject to such
provisions (for the avoidance of doubt it is understood that this clause shall
not apply to the Incurrence of Indebtedness by Restricted Subsidiaries other
than the Company).
SECTION 4.04. Limitation on Restricted Payments. (a) Parent shall
not, and shall not permit any Restricted Subsidiary, directly or indirectly, to
make a Restricted Payment if at the time Parent or such Restricted Subsidiary
makes such Restricted Payment: (1) a Default shall have occurred and be
continuing (or would result therefrom); (2) Parent is not able to Incur an
additional $1.00 of Indebtedness pursuant to Section 4.03(a); or (3) the
aggregate amount of such Restricted Payment and all other Restricted Payments
since the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the beginning of the fiscal
quarter during which the Notes are originally issued to the end of the
most recent fiscal quarter for which financial statements are publicly
available on the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such deficit);
provided, however, that the incremental amount added to amounts otherwise
available under this clause (A) shall not exceed (i) $20.0 million for any
12-month period ending on or before June 30, 2002 and (ii) $15.0 million
for
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any 12-month period ending after June 30, 2002; provided further, however,
that, for purposes of this clause (A), Consolidated Net Income shall be
calculated in the same manner as for determining whether an Incurrence of
Indebtedness would be permitted pursuant to Section 4.03(a);
(B) the aggregate Net Cash Proceeds received by Parent from the
issuance or sale of its Capital Stock (other than Disqualified Stock)
subsequent to the Issue Date (other than an issuance or sale to a
Subsidiary of Parent and other than an issuance or sale to an employee
stock ownership plan or to a trust established by Parent or any of its
Subsidiaries for the benefit of their employees);
(C) the amount by which Indebtedness of Parent is reduced on
Parent's balance sheet upon the conversion or exchange (other than by a
Subsidiary of Parent) subsequent to the Issue Date of any Indebtedness of
Parent convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of Parent (less the amount of any cash, or the fair
value of any other property, distributed by Parent upon such conversion or
exchange); and
(D) an amount equal to the sum of (i) the net reduction in
Investments (other than Investments in Restricted Subsidiaries) resulting
from dividends, repayments of loans or advances or other transfers of
assets, in each case to Parent or any Restricted Subsidiary, or sales of
assets to third parties and (ii) the portion (proportionate to Parent's
equity interest in such Subsidiary) of the fair market value of the net
assets of an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided, however, that
the amount in clause (ii) shall not exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously made (and
treated as a Restricted Payment) by Parent or any Restricted Subsidiary in
such Unrestricted Subsidiary.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any acquisition of any Capital Stock of Parent or any purchase,
repurchase, redemption, defeasance or other acquisition or retirement for
value
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of Subordinated Obligations made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Capital Stock of Parent (other
than Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of Parent or an employee stock ownership plan or to a trust
established by Parent or any of its Subsidiaries for the benefit of their
employees); provided, however, that such Restricted Payment shall be
excluded in the calculation of the amount of Restricted Payments;
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, Capital Stock (other than Disqualified Stock) of Parent or
Indebtedness of Parent which is permitted to be Incurred pursuant to
Section 4.03(a); provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value shall
be excluded in the calculation of the amount of Restricted Payments;
(iii) the payment of any dividend or the consummation of any
irrevocable redemption within 60 days after the date of declaration of
such dividend or notice of such redemption if the dividend or payment of
the redemption price, as the case may be, would have been permitted on the
date of declaration or notice; provided, however, that at the time of
payment of such dividend or redemption, no other Default shall have
occurred and be continuing (or result therefrom); provided further,
however, that such dividend or redemption shall be included in the
calculation of the amount of Restricted Payments; or
(iv) the repurchase or other acquisition of shares of, or options to
purchase shares of, common stock of Parent or any of its Subsidiaries from
employees, former employees, directors or former directors of Parent 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 under which such individuals
purchase or sell or are granted the option to purchase or sell, shares of
such common stock; provided, however, that the aggregate amount of such
repurchases and other
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acquisitions shall not exceed $0.5 million in any calendar year; provided
further, however, that such repurchases and other acquisitions shall be
excluded in the calculation of the amount of Restricted Payments;
(v) repurchases of Capital Stock deemed to occur upon the exercise
of stock options if such Capital Stock represents a portion of the
exercise price thereof; or
(vi) distributions to Great Lakes to fund the Transactions and to
make the Special Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. Parent 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 to Parent or a Restricted Subsidiary or pay any Indebtedness owed to
Parent, (b) make any loans or advances to Parent or (c) transfer any of its
property or assets to Parent, except:
(i) any encumbrance or restriction pursuant to an agreement in effect
at or entered into on the Issue Date, including the Credit Agreement;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary on or prior to the date on which such
Restricted Subsidiary was acquired by Parent(other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by Parent) 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 with respect to
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such Restricted Subsidiary contained in any such refinancing agreement or
amendment are no less favorable to the Securityholders than encumbrances
and restrictions with respect to such Restricted Subsidiary contained in
such predecessor agreements;
(iv) any such encumbrance or restriction consisting of customary
nonassignment provisions in leases governing leasehold interests to the
extent such provisions restrict the transfer of the lease or the property
leased thereunder;
(v) in the case of clause (c) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages; and
(vi) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all
or substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a) Parent shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, consummate any Asset Disposition unless (i) Parent or
such Restricted Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value (including as to the value
of all non-cash consideration), as determined in good faith by the Board of
Directors, of the shares and assets subject to such Asset Disposition and at
least 85% of the consideration thereof received by Parent or such Restricted
Subsidiary is in the form of cash or cash equivalents and (ii) an amount equal
to 100% of the Net Available Cash from such Asset Disposition is applied by
Parent (or such Restricted Subsidiary, as the case may be) (A) to the extent
Parent elects (or is required by the terms of any Indebtedness), to prepay,
repay, redeem or purchase Indebtedness (other than Subordinated Obligations) of
Parent or the Company or Indebtedness (other than any Disqualified Stock) of a
Restricted Subsidiary (in each case other than Indebtedness owed to Parent or an
Affiliate of Parent) within one year from the later of the date of such Asset
Disposition or the receipt of such Net Available Cash; (B) to the extent Parent
elects, to acquire Additional Assets within one year from the later of the date
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of such Asset Disposition or the receipt of such Net Available Cash; and (C) to
the extent of the balance of such Net Available Cash after application in
accordance with clauses (A) and (B), to cause the Company to make an offer to
the holders of the Securities (and if necessary or desirable to holders of other
Indebtedness designated by Parent) to purchase Securities (and such other
Indebtedness) pursuant to and subject to the conditions contained in the
Indenture (provided that if Parent or the Company would be prohibited from
repurchasing Securities in accordance with this clause (a)(ii)(C) by the terms
of any Indebtedness described in clause (a)(ii)(A) above, Parent shall be
required, at its option, either to repay such Indebtedness or to obtain any
required consents under the instruments governing any such Indebtedness in order
to permit the repurchase of the Securities), in each case within one year from
the later of the receipt of such Net Available Cash and the date the offer
described in Section 4.06(b) is consummated; provided, however, that in
connection with any prepayment, repayment or purchase of Indebtedness pursuant
to clause (A) or (C) above, Parent or such Restricted Subsidiary shall
permanently 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 or purchased. Notwithstanding the foregoing provisions of this
Section 4.06(a), Parent and the Restricted Subsidiaries shall not be required to
apply 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
which are not applied in accordance with this Section 4.06(a) exceeds $5.0
million. Pending application of Net Available Cash pursuant to this covenant,
such Net Available Cash may be used for any purpose not prohibited by this
Indenture.
For the purposes of this Section 4.06, the following are deemed to be
cash or cash equivalents: (x) the assumption of Indebtedness of Parent or any
Restricted Subsidiary and the release of Parent or such Restricted Subsidiary
from all liability on such Indebtedness in connection with such Asset
Disposition and (y) securities received by Parent or any Restricted Subsidiary
from the transferee that are promptly converted by Parent or such Restricted
Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Securities (and other Indebtedness) pursuant to clause (a)(ii)(C) above,
Parent will be required to cause the Company to purchase Securities tendered
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pursuant to an offer by Parent and the Company for Securities (and other
Indebtedness) at a purchase price of 100% of their principal amount (without
premium) plus accrued but unpaid interest (or, in respect of such other
Indebtedness, such greater or lesser price, if any, as may be provided for by
the terms of such Indebtedness) in accordance with the procedures (including
prorating in the event of oversubscription) set forth Section 4.06(c). Parent
shall not be required to cause the Company to make such an offer to purchase
Securities (and other Indebtedness) pursuant to this Section 4.06 if the Net
Available Cash available therefor is less than $7.5 million (which lesser amount
shall be carried forward for purposes of determining whether such an offer is
required with respect to the Net Available Cash from any subsequent Asset
Disposition). To the extent that the aggregate amount of Securities tendered
pursuant to clause (a)(ii)(C) above is less than the Net Available Cash, Parent
may use any remaining Net Available Cash for general corporate purposes. Upon
completion of any such offer pursuant to clause (a)(ii)(C), the Net Available
Cash amount shall be reset at zero.
(c) (1) Promptly, and in any event within 10 days after Parent
becomes obligated to require the Company to make an Offer, Parent 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 to have his
Securities purchased by the Company 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 Parent which Parent in good
faith believes will enable such Holders to make an informed decision (which at a
minimum will include (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of Parent, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form
8-K of Parent filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Dispositions otherwise described in the offering
materials (or corresponding successor reports), (ii) a description of material
developments in Parent's business subsequent to the date of the latest of such
Reports, and (iii) if material, appropriate pro forma financial information) and
all instructions and materials
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necessary to tender Securities pursuant to the Offer, together with the
information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided below, Parent shall deliver to the Trustee
an Officers' Certificate as to (i) the amount of the Offer (the "Offer Amount"),
(ii) the allocation of the Net Available Cash from the Asset Dispositions
pursuant to which such Offer is being made and (iii) the compliance of such
allocation with the provisions of Section 4.06(a). On such date, the Company
shall also irrevocably deposit with the Trustee or with a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in trust) in
Temporary Cash Investments, maturing on the last day prior to the Purchase Date
or on the Purchase Date if funds are immediately available by open of business,
an amount equal to the Offer Amount to be held 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"), but in no event later than one Business
Day prior to the Purchase Date, the Company shall deliver to the Trustee for
cancellation the Securities or portions thereof which have been properly
tendered to and are to be accepted by the Company. Subject to the prior receipt
by the Trustee of the Offer Amount in immediately available funds, (i) the
Trustee shall, on the Purchase Date, mail or deliver payment to each tendering
Holder in the amount of the purchase price and (ii) in the event that the
aggregate purchase price of the Securities delivered by the Company to the
Trustee is less than the Offer Amount applicable to the Securities, the Trustee
shall deliver the excess to the Company immediately after the expiration of the
Offer Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Company 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 Company receives not later than one Business Day
prior to the Purchase Date, a 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 ▇▇▇▇▇▇ is
withdrawing his election to have such Security purchased. The Company shall
promptly deliver a copy of any such notice received by it to the Trustee. If at
the expiration of the Offer Period the
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aggregate principal amount of Securities (and any other Indebtedness included
in the Offer) surrendered by holders thereof exceeds the Offer Amount, the
Company shall select the Securities and the other Indebtedness to be purchased
on a pro rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Securities and the other Indebtedness in denominations of
$1,000, or integral multiples thereof, shall be 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.
(4) At the time the Company delivers Securities to the Trustee which are
to be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
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.
(d) Parent and the Company 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, Parent and the Company
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 Affiliate Transactions. (a) Parent shall
not, and shall not permit any Restricted Subsidiary to, enter into or permit to
exist any transaction (including the purchase, sale, lease or exchange of any
property, employee compensation arrangements or the rendering of any service)
with any Affiliate of Parent (an "Affiliate Transaction") unless the terms
thereof (i) are no less favorable to Parent or such Restricted Subsidiary 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) if such Affiliate
Transaction involves an amount in excess of $2.0 million, (1) are set forth in
writing and (2) have been approved by a majority of the members of the Board of
Directors having no personal stake in such Affiliate Transaction or have been
determined by a nationally recognized appraisal or investment banking
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firm to be fair, from a financial standpoint, to Parent and its Restricted
Subsidiaries and (iii) if such Affiliate Transaction involves an amount in
excess of $7.5 million, have been determined by a nationally recognized
appraisal or investment banking firm to be fair, from a financial standpoint,
to Parent and its Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (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 and stock ownership plans approved by the Board of Directors, (iii) the
grant of stock options or similar rights to employees and directors of Parent
and its Restricted Subsidiaries pursuant to plans approved by the Board of
Directors, (iv) loans or advances to employees in the ordinary course of
business in accordance with the past practices of Parent or its Restricted
Subsidiaries, but in any event not to exceed $.05 million in the aggregate
outstanding at any one time, (v) reasonable fees and compensation paid to, and
indemnity provided on behalf of, officers, directors, employees or consultants
of Parent or any Restricted Subsidiary as determined in good faith by ▇▇▇▇▇▇'s
Board of Directors or senior management, (vi) any Affiliate Transaction between
Parent and a Restricted Subsidiary or between Restricted Subsidiaries, (vii)
the issuance or sale of any Capital Stock (other than Disqualified Stock) of
Parent and (viii) transactions and agreements with Great Lakes and its
Affiliates as described herein arising out of the Spinoff and the
Reorganization.
SECTION 4.08. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries. Parent shall not sell or otherwise dispose of any
Capital Stock of a Restricted Subsidiary, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell or otherwise dispose of any
of its Capital Stock except (i) to Parent or a Restricted Subsidiary, (ii) if,
immediately after giving effect to such issuance, sale or other disposition,
neither Parent nor any of its Subsidiaries own any Capital Stock of such
Restricted Subsidiary or (iii) 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 the
covenant described
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in Section 4.04 if made on the date of such issuance, sale or other
disposition.
SECTION 4.09. Change of Control. (a) Upon the occurrence of a Change of
Control, each Holder shall have the right to require that the Company repurchase
such Holder's Securities at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of holders of record on the relevant record
date to receive interest on the relevant interest payment date), in accordance
with the terms contemplated in Section 4.09(b); provided, however, that
notwithstanding the occurrence of a Change of Control, the Company shall not be
obligated to purchase Securities pursuant to this Section 4.09 in the event the
Company has theretofore exercised its right to redeem all the Securities as
described in paragraph 5 of the Securities. In the event that at the time of
such Change of Control the terms of the Bank Indebtedness or other Indebtedness
restrict or prohibit the repurchase of Securities pursuant to this Section, then
prior to the mailing of the notice to Holders provided for in Section 4.09(b)
below but in any event within 30 days following any Change of Control, the
Company shall (i) repay in full all such Bank Indebtedness or other Indebtedness
or offer to repay in full all such Bank Indebtedness or other Indebtedness and
repay such Bank Indebtedness or other Indebtedness of each lender who has
accepted such offer or (ii) obtain the requisite consent under the agreements
governing such Bank Indebtedness or other Indebtedness to permit the repurchase
of the Securities as provided for in Section 4.09(b).
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(b) Within 30 days following any Change of Control, (1) Parent and the
Company shall, so long as the Securities are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, publish notice
thereof in a newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort) and, in the case of Definitive Notes,
shall also mail a notice to each Holder at its address appearing in the
register of Holders, with a copy to the Trustee, which notice shall govern the
terms of the Change of Control Offer (the "Change of Control Offer") and (2),
for so long as any Notes are represented by Global Notes, the Change of Control
Offer shall (in addition to publication as described above) also be given by
delivery of the notice to DTC, Euroclear and/or Cedel Bank (as the case may be)
for communication to the relative Holders of the Book-Entry Interests. Such
notice shall state:
(A) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Securities at
a purchase price in cash equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders on the relevant record date to receive
interest on the relevant interest payment date);
(B) the circumstances and relevant facts regarding such Change of
Control (including information with respect to pro forma historical
income, cash flow and capitalization, each after giving effect to such
Change of Control);
(C) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(D) the instructions determined by the Company, consistent with this
Section, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate form duly completed, to the Company
at the address specified in the notice at least three Business Days prior to
the purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
purchase date, a telegram, telex, facsimile transmission or letter setting
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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 ▇▇▇▇▇▇ is
withdrawing his election to have such Security purchased. The Company shall
promptly deliver a copy of any such notice received by it to the Trustee.
(d) On the purchase date, all Securities purchased by the Company under
this Section shall be delivered to the Trustee for cancellation, and the
Company shall pay the purchase price plus accrued and unpaid interest, if any,
to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the Company
will 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 this Section
applicable to a Change of Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change of Control
Offer.
(f) Parent and the Company 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, Parent and the Company
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 4.10. Limitation on Liens. Parent shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, Incur or permit to exist
any Lien of any nature whatsoever on any of its properties (including Capital
Stock of a Restricted Subsidiary), whether owned at the Issue Date or thereafter
acquired, other than Permitted Liens, without effectively providing that the
Securities shall be secured equally and ratably with (or prior to) the
obligations so secured for so long as such obligations are so secured.
SECTION 4.11. Limitation on Sale/Leaseback Transactions. Parent shall
not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless (i) Parent
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or such Subsidiary would be entitled to (A) Incur Indebtedness in an amount
equal to the Attributable Debt with respect to such Sale/Leaseback Transaction
pursuant to Section 4.03 and (B) create a Lien on such property securing such
Attributable Debt without equally and ratably securing the Securities pursuant
to Section 4.10, (ii) the net proceeds received by Parent or any Restricted
Subsidiary in connection with such Sale/Leaseback Transaction are at least
equal to the fair value (as determined by the Board of Directors) of such
property and (iii) Parent applies the proceeds of such transaction in
compliance with Section 4.06.
SECTION 4.12. Limitations on Lines of Business. Neither Parent nor the
Company shall, and neither shall permit any Restricted Subsidiary to, directly
or indirectly, engage in any business other than a Related Business.
SECTION 4.13. Additional Amounts. (a) All payments made by or on behalf
of the Company on or with respect to the Securities (whether or not in the form
of Definitive Notes (as defined)), and all payments made by or on behalf of
Parent under or with respect to the Parent Guaranty will be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever nature (collectively,
"Taxes") imposed or levied by or on behalf of the United Kingdom (or the
jurisdiction of incorporation of any Successor Company of either) or any
political subdivision thereof or any authority having power to tax therein (each
a "Tax Authority"), unless the withholding or deduction of such Taxes is then
required by law. If any deduction or withholding for, or on account of, any
Taxes of any Tax Authority shall at any time be required on any payments made by
the Company (or Successor Company) on or with respect to the Securities or by
Parent (or Successor Company) under or with respect to the Parent Guaranty,
including payments of principal, redemption price, interest, additional interest
or premium, the Company or Parent, as the case may be, will pay such additional
amounts (the "Additional Amounts") as may be necessary in order that the net
amounts received in respect of such payments by the Holders of the Securities
(including Additional Amounts) or the Trustee, as the case may be, after such
withholding or deduction, equal the respective amounts which would have been
received in respect of such payments in the absence of such withholding or
deduction; except that no such Additional Amounts will be payable with respect
to:
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(i) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any payments on a
Security held by or on behalf of a Holder or a beneficial owner who is
liable for such Taxes in respect of such Security by reason of the Holder
or beneficial owner having some connection with the United Kingdom or the
jurisdiction of incorporation of any Successor Company (including being a
citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present in,
the United Kingdom or the jurisdiction of incorporation of any Successor
Company) other than by the mere holding of such Security or enforcement
of rights thereunder or the receipt of payments in respect thereof;
(ii) in the case of Securities listed on a Recognized Stock
Exchange at the time such Additional Amounts would be payable, any Taxes
that are imposed or withheld as a result of a change in law after the
Issue Date where such withholding or imposition is by reason of the
failure of the Holder or beneficial owner of the Security to comply with
any reasonable request by the Company to provide information concerning
the nationality, residence or identity of such Holder or beneficial owner
or to make any declaration or similar claim or satisfy any information or
reporting requirement, (A) if such compliance is required or imposed by a
statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such
Taxes, (B) such Holder may legally comply with such requirements and (C)
at least 30 days prior to the date on which the Company shall apply this
clause (ii), the Company shall have notified such Holders of such
requirements;
(iii) except in the case of the winding up of the Company, any
Security presented for payment (where presentation is required) in the
United Kingdom or the jurisdiction of incorporation of any Successor
Company (unless presentment could not have been made elsewhere); or
(iv) any Security presented for payment (where Securities are in the
form of Definitive Notes and presentation is required) more than 30 days
after the relevant payment is first made available for payment to the
Holder (except to the extent that the Holder would
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have been entitled to Additional Amounts had the Security been presented
on any day (including the last day) within such 30 day period).
Such Additional Amounts will also not be payable where, had the beneficial
owner of the Security been the Holder of the Security, it would not have been
entitled to payment of Additional Amounts by reason of any of clauses (i) to
(iv) inclusive above.
(b) Where required by applicable law, the Company, Parent or any Paying
Agent, as the case may be, will also (i) make any required withholding or
deduction in respect of any Taxes and (ii) remit the full amount deducted or
withheld to the relevant Tax Authority in accordance with applicable law (in the
case of a Paying Agent that is not the Company or an affiliate thereof, on the
basis of an Officer's Certificate instructing the Paying Agent to do so and
stating the amount of such withholding). The Company or Parent, as the case may
be, will furnish or cause to be furnished to the Trustee, within 30 days after
the date of the payment of any Taxes due pursuant to applicable law, certified
copies of tax receipts satisfactory to the Trustee evidencing such payment by
the Company or Parent, as the case may be. Copies of such receipts will be made
available to Holders of Notes that are outstanding on the date of such
withholding or deduction for or on account of Taxes upon request. Further, the
Company or Parent, as the case may be, will indemnify and hold harmless each
Holder of Notes (other than a Holder described in clauses (i)-(iv) of paragraph
(a) above) and upon written request will promptly reimburse each such Holder for
the amount of (1) any Taxes levied or imposed and paid by such Holder as a
result of payments made on or with respect to the Notes or under or with respect
to the Parent Guarantee, (2) any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto and (3) any Taxes imposed
with respect to any reimbursement under (1) or (2), but excluding any Taxes
based on a Holder's net income.
(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 or under or with respect to the Parent Guaranty, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section to the extent that, in such
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context, Additional Amounts are, were or would be payable in respect thereof.
(d) The Company or Parent, as the case may be, will pay any present or
future stamp, court or documentary taxes, or any other excise or property
taxes, charges or similar levies which arise in any jurisdiction from the
execution, delivery or registration of the Securities, the Parent Guaranty or
any other document or instrument referred to therein, or the receipt of any
payments on or with respect to the Securities or under or with respect to the
Parent Guaranty, excluding any such taxes, charges or similar levies imposed by
any jurisdiction outside of the United Kingdom, the United States of America or
any jurisdiction in which a Paying Agent is located, other than those resulting
from, or required to be paid in connection with, the enforcement of the
Securities or any other such document or instrument following the occurrence of
any Event of Default with respect to the Securities.
SECTION 4.14. Compliance Certificate. Parent and the Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of Parent and the Company,
respectively, they would normally have knowledge of any Default and whether or
not the signers know of any Default that occurred during such period. If they
do, the certificate shall describe the Default, its status and what action
Parent or the Company is taking or proposes to take with respect thereto.
Parent and the Company also shall comply with TIA " 314(a)(4).
SECTION 4.15. Further Instruments and Acts. Upon request of the Trustee,
Parent and the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE 5
Successor Company
SECTION 5.01. When Parent and Company May Merge or Transfer Assets.
(a) Neither Parent nor the Company shall consolidate with or merge with or into,
or convey,
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transfer or lease, in one transaction or a series of transactions, all or
substantially all its assets to, any other Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of
England and Wales or the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not
Parent or the Company) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of Parent or
the Company under the Parent Guaranty or the Securities and this
Indenture, respectively;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or such Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) except in the case of a merger of Parent or the Company with
or into a Wholly Owned Subsidiary of Parent or the Company, respectively,
and except in the case of a merger entered into solely for the purpose of
reincorporating Parent or the Company in another jurisdiction,
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);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount that is
not less than the Consolidated Net Worth of Parent or the Company, as the
case may be, immediately prior to such transaction;
(v) Parent or the Company, as the case may be, 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; and
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(vi) Parent or the Company, as the case may be, shall have delivered
to the Trustee Opinions of Counsel to the effect that (A) the Holders will
not recognize income, gain or loss for U.S. Federal income tax purposes as
a result of such transaction; (B) any payment of principal, redemption
price or purchase price of, premium (if any), Additional Amounts (if any)
and interest on the Securities by the Successor Company to a Holder after
the consolidation, merger, conveyance, transfer or lease of assets will be
exempt from the Taxes described and defined in Section 4.13 and (C) no
other taxes on income (including taxable capital gains) will be payable
under the laws of the United Kingdom or any other jurisdiction where the
Successor Company is or becomes located by a Holder of the Securities who
is not or is not deemed to be a resident of the United Kingdom or other
jurisdiction where the Successor Company is or becomes located and does
not carry on a trade in the United Kingdom through a branch, agency or
permanent establishment to which the Securities of that Holder are
attributable (or, as the case may be, does not carry on any business
activities through a branch, agency or permanent establishment in such
other jurisdiction where the Successor Company is or becomes located) in
respect of the acquisition, ownership or disposition of Securities,
including the receipt of principal, premium (if any), Additional Amounts
(if any) or interest paid pursuant to such Securities.
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, Parent or the Company under this
Indenture, as the case may be, but the predecessor company in the case of a
conveyance, transfer or lease of all or substantially all its assets shall not
be released from the obligation to pay the principal of and interest on the
Securities.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Security
when the same becomes due and
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payable, whether or not such payment shall be prohibited by Article 10,
and such default continues for a period of 30 days;
(2) the Company (i) defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity,
upon redemption, upon declaration or otherwise, whether or not such
payment shall be prohibited by Article 10 or (ii) fails to redeem or
purchase Securities when required pursuant to this Indenture or the
Securities, whether or not such redemption or purchase shall be prohibited
by Article 10;
(3) Parent or the Company fails to comply with Section 5.01;
(4) Parent or the Company fails to comply with Section 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 or 4.12 (other than a
failure to purchase Securities when required under Section 4.06 or 4.09)
and such failure continues for 30 days after the notice specified below;
(5) Parent or the Company fails to comply with any of its agreements
in the Securities or this Indenture (other than those referred to in
clause (1), (2), (3) or (4) above) and such failure continues for 60 days
after the notice specified below;
(6) Indebtedness of Parent, the Company or any Significant Subsidiary
is not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
principal amount or accreted value of such Indebtedness unpaid or
accelerated exceeds $5.0 million, or its foreign currency equivalent at
the time;
(7) Parent, the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
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(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against Parent, the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of Parent, the Company or any
Significant Subsidiary or for any substantial part of its property;
or
(C) orders the winding up or liquidation of Parent, 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 60 days; or
(9) any judgment or decree for the payment of money in excess of $5.0
million or its foreign currency equivalent at the time is entered against
Parent, the Company or any Significant Subsidiary, remains outstanding for
a period of 60 days following the entry of such judgment or decree and is
not discharged, waived or the execution thereof stayed.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
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A Default under clauses (4) or (5) is not an Event of Default until the
Trustee or the holders of at least 25% in principal amount of the outstanding
Securities notify the Company of the Default and Parent or the Company does not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (6) and any event which with the giving of
notice or the lapse of time would become an Event of Default under clause (4) or
(5), its status and what action Parent and the Company are taking or propose 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(7) or (8) with respect to the Company)
occurs and is continuing, the Trustee by notice in writing to the Company, or
the Holders of at least 25% in principal amount of the Securities by notice in
writing to the Company and the Trustee, may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable with such notice
to specify the Event of Default and that such notice is a "notice of
acceleration" ("Acceleration Notice"); provided, however, that until such time
as the Bank Indebtedness is paid in full, no such Acceleration Notice with
respect to an Event of Default described in Section 6.01(1) shall be effective
until the earlier of (a) the fifth Business Day after the giving of the
Acceleration Notice to the Company and the Representative under the Credit
Agreement (but only if such Event of Default is then continuing) and (b) the
acceleration of the Bank Indebtedness, in each case subject to Article 10. Upon
such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to Parent or the Company occurs and is continuing, 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 Securityholders. 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 nonpay-
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ment 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 Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (i) a Default in the payment of the
principal of or interest on a Security (ii) a Default arising from the failure
to redeem or purchase any Security when required pursuant to this Indenture or
(iii) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in principal
amount of the 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
Securityholders or would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
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SECTION 6.06. Limitation on Suits. Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities held by such Holder, on
or after the respective due dates expressed in 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(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers
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or documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
Parent, the Company, their respective creditors or their respective property
and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section
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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
Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Parent and the
Company (to the extent they may lawfully do so) shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and Parent and the Company (to the extent that they may lawfully do
so) hereby expressly waive 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 ▇▇▇▇▇▇'s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated
in the document.
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(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(g) The Trustee shall not be required to give nay bond or surety in
respect of the performance of its powers and duties hereunder.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in the Inden-
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ture or in any document issued in connection with the sale of the Securities or
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Trust Officer of the Trustee, the Trustee shall mail to
each Securityholder notice of the Default within 90 days after it occurs.
Except in the case of a Default in payment of principal of or interest on any
Security (including payments pursuant to the mandatory redemption provisions of
such Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with the May 15 following the date of this
Indenture, and in any event prior to July 15 in each year, the Trustee shall
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA paragraph 313(a). The Trustee also shall comply with TIA paragraph
313(b).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange (if any) on which the Securities
are listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall
not relieve the Company of its
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obligations hereunder. The Company shall defend the claim and the Trustee may
have separate counsel and the Company shall pay the fees and expenses of such
counsel. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(7) or (8) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company 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 Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the
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retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.09. Successor Trustee by ▇▇▇▇▇▇. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA
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Section 310(a). The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a) When
(i) the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation 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 Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Securities, including interest
thereon to maturity or such redemption date (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Sections
8.01(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.12 and the operation of
Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) and the
limitations contained in Sections 5.01(a)(iii) and (iv)
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("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option, payment of
the Securities may not be accelerated because of an Event of Default specified
in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) or
because of the failure of the Company to comply with Section 5.01(a)(iii) or
(iv). In the event that the Company exercises its legal defeasance option (but
not its covenant defeasance option), Parent will be released from all of its
obligations under the Parent Guaranty.
Upon satisfaction of the conditions set forth herein and upon
specific request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise
its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of and
interest on the Securities to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case may be;
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(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Sections 6.01(7) or (8) with respect to
Parent or the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable U.S. Federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Securityholders will not recognize income, gain
or loss for U.S. Federal income tax purposes as a result of such deposit
and defeasance and will be subject to U.S. Federal income tax and United
Kingdom 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;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Securityholders will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to U.S. Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such deposit and covenant defeasance had not occurred; and
(8) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this
Article 8 have been complied with.
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Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities at a future date in accordance
with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and
securities so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent shall
promptly turn over to the Company upon request money or securities held by them
at any time that, in the written opinion addressed to the Trustee of a
nationally recognized firm of independent public accountants (which may be the
opinion delivered under Section 8.02(2)), are in excess of the amount that would
then be required to be deposited pursuant to this Article 8.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Securityholders entitled to the money must look to the Company for
payment as general creditors and all liability of the Trustee and such Paying
Agent (if not the Company or any of its affiliates) with respect to the payment
of such money shall thereupon cease.
SECTION 8.05. Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article 8
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's and Parent'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
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money or U.S. Government Obligations in accordance with this Article 8;
provided, however, that, if the Company has made any payment of interest on or
principal of any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 or Article 12 that would limit
or terminate the benefits available to any holder of Bank Indebtedness
(or Representatives therefor) under Article 10 or Article 12;
(5) to add guarantees with respect to the Securities or to secure
the Securities;
(6) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(7) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA; or
(8) to make any change that does not adversely affect the rights of
any Securityholder.
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An amendment under this Section may not make any change that adversely
affects the rights under Article 10 or Article 12 of any holder of Bank
Indebtedness then outstanding unless the holders of such Bank Indebtedness (or
their representative) consent to such change to the extent such consent is
required pursuant to the terms of such Bank Indebtedness.
After an amendment under this Section becomes effective, the Company shall
mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company and the Trustee may
amend this Indenture or the Securities without notice to any Securityholder but
with the written consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a purchase of, or a tender offer or exchange for, the
Securities). However, without the consent of each Securityholder affected
thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may or shall be redeemed in
accordance with Article 3;
(5) make any Security payable in money other than that stated in the
Security;
(6) make any change in Article 10 or Article 12 that adversely
affects the rights of any Securityholder under Article 10 or Article 12;
(7) make any change in Section 6.04 or 6.07 or the second sentence
of this Section;
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(8) make any change in the Parent Guaranty that would adversely
affect the Securityholders; or
(9) make any change in Section 4.13 that would adversely affect the
Securityholders or amend the terms of the Securities or this Indenture in
a way that would result in the loss of an exemption from any of the Taxes
described in Section 4.13.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that adversely
affects the rights under Article 10 or Article 12 of any holder of Bank
Indebtedness then outstanding unless the holders of such Bank Indebtedness (or
their representative) consent to such change to the extent such consent is
required pursuant to the terms of the Bank Indebtedness.
After an amendment under this Section becomes effective, the Company shall
mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A consent to
an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective. After an amendment
or waiver becomes effective, it shall bind every Securityholder. An amendment
or waiver becomes effective upon the execution of such amendment or waiver by
the Trustee.
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The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding
the immediately preceding paragraph, those Persons who were Securityholders at
such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective
for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if 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 will be valid and
binding upon the Company in accordance with its terms.
SECTION 9.07. Payment for Consent. Neither the Company nor any Affiliate
of the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
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ARTICLE 10
Payment Blockage
SECTION 10.01. Default on Bank Indebtedness. During the continuance of
any default with respect to any Bank Indebtedness pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace periods, the Company may not pay the principal of or interest
on the Securities (except for payments made from the trusts described in Article
8) or make any deposit pursuant to Section 8.01 and may not repurchase, redeem
or (except for Securities delivered to the Trustee pursuant to the second
sentence of paragraph 6 of the Securities) otherwise retire any Securities
(collectively, "pay the Securities") for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice (a
"Blockage Notice") of such default from the Representative under the Credit
Agreement specifying an election to effect a Payment Blockage Period and ending
179 days thereafter (or earlier if such Payment Blockage Period is terminated
(i) by written notice to the Trustee and the Company from the Person or Persons
who gave such Blockage Notice, (ii) because the default giving rise to such
Blockage Notice is no longer continuing or (iii) because such Bank Indebtedness
has been repaid in full in cash and any outstanding letters of credit, bonds and
guarantees under the Credit Agreement and any Hedging Obligations Incurred in
connection with the Credit Agreement have been fully cash collateralized).
Notwithstanding the provisions described in the immediately preceding sentence,
the Company may resume payments on the Securities after termination of such
Payment Blockage Period. Not more than one Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Bank Indebtedness during such period. For purposes of this Section, no
default or event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Bank
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment Blockage Period by the
Representative under the Credit Agreement whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured
or waived for a period of not less than 180 consecutive days (it being
acknowledged that any subsequent action, omission or any
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breach of any financial covenants for a period commencing after the date of
commencement of such Payment Blockage Period or other matter or thing that, in
any case, would give rise to a default pursuant to any provisions under which a
default previously existed or was continuing shall constitute a new default for
this purpose).
SECTION 10.02. Acceleration of Payment of Securities. If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify the holders of the Bank Indebtedness (or their Representative)
of the acceleration.
SECTION 10.03. Relative Rights. This Article 10 defines the relative
rights of Securityholders and holders of Bank Indebtedness. Nothing in this
Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default.
SECTION 10.04. Payment Blockage May Not Be Impaired by Company. No right
of any holder of Bank Indebtedness to enforce the payment blockage of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or by its failure to comply with this Indenture.
SECTION 10.05. Notice to Representative. Whenever a notice is to be given
to holders of Bank Indebtedness, the notice may be given to their Representative
(if any).
SECTION 10.06. Article 10 Not to Prevent Events of Default or Limit Right
to Accelerate. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect
on the right of the Securityholders or the Trustee to accelerate the maturity of
the Securities.
SECTION 10.07. Trust Moneys Not Subject to Payment Blockage.
Notwithstanding anything contained herein
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to the contrary, payments from money or the proceeds of U.S. Government
Obligations held in trust under Article 8 by the Trustee for the payment of
principal of and interest on the Securities shall not be subject to the
restrictions set forth in this Article 10.
ARTICLE 11
Parent Guaranty
SECTION 11.01. Guarantee. Parent, as primary obligor and not merely as
surety, hereby irrevocably, fully and unconditionally Guarantees on a senior
basis to each Holder and to the Trustee and its successors and assigns (a) the
full and punctual payment of principal of and interest on the Securities when
due, whether at Stated Maturity, by acceleration, by redemption or otherwise,
and all other monetary obligations of the Company under this Indenture and the
Securities and (b) the full and punctual performance within applicable grace
periods of all other obligations of the Company under this Indenture and the
Securities (the foregoing obligations Guaranteed by Parent hereinafter
collectively called the "Guaranteed Obligations" or the "Parent Guaranty").
Parent further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from Parent, and
that Parent shall remain bound under this Article 11 notwithstanding any
extension or renewal of any such Guaranteed Obligation.
Parent waives presentation to, demand of, payment from and protest to the
Company of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment. Parent waives notice of any default under the Securities or
the Guaranteed Obligations. The obligations of Parent hereunder shall not be
affected by (a) the failure of any Holder or the Trustee to assert any claim or
demand or to enforce any right or remedy against the Company or any other
Person under this Indenture, the Securities or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations or
any of them; (e) the failure of any Holder or Trustee to exercise any right or
remedy against any other Guarantor of the Guaranteed
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Obligations; or (f) any change in the ownership of such Guarantor.
Parent further agrees that the Parent Guaranty 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.
The Parent Guaranty, as it relates to the principal of and interest on the
Securities shall be, to the extent and manner set forth in Article 12, subject
to certain payment blockage provisions with respect to the Bank Indebtedness
and the Parent Guaranty is hereby made subject to such provisions of this
Indenture.
The obligations of Parent 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 Parent 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
Parent or would otherwise operate as a discharge of Parent as a matter of law
or equity.
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 Parent by
virtue hereof, upon the failure of the Company to pay the principal of or
interest 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, Parent 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
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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 Guaranteed Obligations of the Company to the Holders and the Trustee.
Parent 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. Parent further
agrees that, as between it, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the Guaranteed Obligations Guaranteed
hereby may be accelerated as provided in Article 6 for the purposes of the
Parent Guaranty, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations
Guaranteed hereby, and (y) in the event of any declaration of acceleration of
such Guaranteed Obligations as provided in Article 6, such obligations (whether
or not due and payable) shall forthwith become due and payable by Parent for
the purposes of this Section.
▇▇▇▇▇▇ also agrees to pay any and all costs and expenses (including
reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing
any rights under this Section.
SECTION 11.02. Successors and Assigns. This Article 11 shall be binding
upon Parent and its respective successors and assigns and shall enure 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 11.03. 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 11 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 11 at law,
in equity, by statute or otherwise.
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SECTION 11.04. Modification. No modification, amendment or waiver of any
provision of this Article 11, nor the consent to any departure by Parent
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 Parent in any case shall entitle Parent to any other or further
notice or demand in the same, similar or other circumstances.
ARTICLE 12
Payment Blockage of Parent Guaranty
SECTION 12.01. Default on Bank Indebtedness. During the continuance of
any default with respect to any Bank Indebtedness pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace periods, Parent may not pay its Guaranty for a period (a
"Parent Payment Blockage Period") commencing upon the receipt by the Trustee
(with a copy to Parent) of written notice (a "Parent Blockage Notice") of such
default from the Representative under the Credit Agreement specifying an
election to effect a Parent Payment Blockage Period and ending 179 days
thereafter (or earlier if such Parent Payment Blockage Period is terminated (i)
by written notice to the Trustee and Parent from the Person or Persons who gave
such Parent Blockage Notice, (ii) because the default giving rise to such Parent
Blockage Notice is no longer continuing or (iii) because such Bank Indebtedness
has been repaid in full in cash and any outstanding letters of credit, bonds and
guarantees under the Credit Agreement and any Hedging Obligations Incurred in
connection with the Credit Agreement have been fully cash collateralized).
Notwithstanding the provisions described in the immediately preceding sentence,
Parent shall resume payments pursuant to its Obligations after termination of
such Parent Payment Blockage Period. The Parent Guaranty shall not be subject
to more than one Parent Payment Blockage Period in any consecutive 360-day
period, irrespective of the number of defaults with respect to Bank Indebtedness
during such period. For purposes of this Section, no default or event of default
which existed or was continuing on the date of the commencement of any Parent
Payment Blockage Period with respect to the Bank Indebtedness initiating such
Parent Payment Blockage Period
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shall be, or be made, the basis of the commencement of a subsequent Parent
Payment Blockage Period by the Representative under the Credit Agreement whether
or not within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 180
consecutive days (it being acknowledged that any subsequent action, omission or
any breach of any financial covenants for a period commencing after the date of
commencement of such Parent Payment Blockage Period or other matter or thing
that, in any case, would give rise to a default pursuant to any provisions under
which a default previously existed or was continuing shall constitute a new
default for this purpose).
SECTION 12.02. Demand for Payment of Securities. If a demand for payment
(upon receipt of the requisite information from Parent) is made on Parent
pursuant to Article 11, Parent shall promptly notify the holders of the Bank
Indebtedness (or their Representative) of such demand.
SECTION 12.03. Relative Rights. This Article 12 defines the relative rights
of Securityholders and holders of Bank Indebtedness. Nothing in this Indenture
shall:
(1) impair, as between Parent and Securityholders, the obligations of
Parent, which is absolute and unconditional, to pay its Obligations to the
extent set forth in Article 11; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by Parent under its Obligations.
SECTION 12.04. Payment Blockage May Not Be Impaired by Parent. No right of
any holder of Bank Indebtedness to enforce the payment blockage of the
Obligations of Parent shall be impaired by any act or failure to act by Parent
or by its failure to comply with this Indenture.
SECTION 12.05. Notice to Representative. Whenever a notice is to be given
to holders of Bank Indebtedness, the notice may be given to their Representative
(if any).
SECTION 12.06. Article 12 Not to Prevent Defaults under Parent Guaranty or
Limit Right to Demand Payment. The failure to make a payment pursuant to the
Parent Guaranty by reason of any provision in this Article 12 shall not be
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construed as preventing the occurrence of a default under the Parent Guaranty.
Nothing in this Article 12 shall have any effect on the right of the
Securityholders or the Trustee to made a demand for payment on Parent pursuant
to Article 11.
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. Notices. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Octel Developments PLC
P.O. Box ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention of Company Secretary
if to Parent:
Octel Corp.
P.O. Box ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention of Company Secretary
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if to the Trustee:
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Finance Trust Services
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
The Company, Parent or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication regarding the Securities will be (so long as
the Securities are listed on the Luxembourg Stock Exchange and the rules of such
stock exchange shall so require) published in a newspaper having a general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) and, in
the case of Definitive Securities, shall also be mailed by first class mail to
each Holder of Securities at its address appearing in the register of Holders.
For so long as any Securities are represented by the Global Securities, notices
to Holders shall (in addition to publication as described above) also be given
by delivery of the relevant notice to DTC, Euroclear and/or Cedel Bank (as the
case may be) for communication to the relative Holders of the Book-Entry
Interests. Such notice shall be sufficiently given if so published or mailed, as
the case may be, within the time prescribed.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered, five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next Business Day delivery.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
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SECTION 13.03. Communication by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company,
Parent, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
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SECTION 13.06. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which a Trust Officer knows are so owned shall be so disregarded.
Also, subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions are not required to be open in the State of
New York. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the
record date shall not be affected.
SECTION 13.09. 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 the applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 13.10. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder, as such, of Parent or the Company shall have any
liability for any obligations of Parent or the Company under the Parent
Guaranty, the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION 13.11. Successors. All agreements of the Company in this Indenture
and the Securities shall bind its
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successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.12 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 13.13 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.
ARTICLE 14
Security Forms
SECTION 14.01. Forms Generally. The Securities and the Trustee's
certificates of authentication thereof shall be in substantially the forms set
forth in this Article, with such appropriate legends, insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
Upon their original issuance, Rule 144A Securities shall be issued in the
form of a Global Security in bearer form without interest coupons, which shall
be deposited on behalf of the Initial Purchasers with the Book-Entry Depositary
at its Luxembourg corporate trust office, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Such Global Security,
together with its Successor Securities which are Global Securities other than
the Regulation S Global Security, are collectively herein called the "Restricted
Global Security". Upon their original issuance, Regulation S Securities shall be
issued in the form of a Global Security in bearer form without interest coupons,
which shall be deposited on behalf of the Initial Purchasers with the Book-Entry
Depositary at its New York corporate trust office, duly executed by the Company
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and authenticated by the Trustee as hereinafter provided. Such Global Security,
together with its Successor Securities which are Global Securities other than
the Restricted Global Security, are collectively herein called the "Regulation S
Global Security".
Upon receipt of the Restricted Global Security and the Regulation S Global
Security authenticated and delivered by the Trustee, the Book-Entry Depositary
shall issue to the Depositary a Depositary Interest in each such Global Security
by recording the Depositary Interest in the register of the Book-Entry
Depositary in the name of Cede & Co., as nominee of the Depositary. Ownership of
beneficial interests shall be limited to Participants, including Euroclear and
Cedel, and Indirect Participants. Upon the issuance of the Depositary Interest
in such Global Security to the Depositary, the Depositary shall credit, on its
internal book-entry registration and transfer system, its Participant's
accounts with respective interests owned by such Participants.
Neither the Depositary nor its Participants shall have any rights either
under this Indenture or under any Global Security with respect to such Global
Security held on their behalf by the Book-Entry Depositary, and the Book-Entry
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for the
purpose of receiving payment of or on account of the principal of (premium, if
any) and, subject to the provisions of this Indenture, interest on the Global
Security and for all other purposes. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Book-Entry Depositary or impair, as between the
Book-Entry Depositary and the Depositary and its Participants, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
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SECTION 14.02. Form of Face of Security. [If a Global Security issued in
bearer form, then insert -- THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE BOOK-ENTRY
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF. THIS SECURITY IS NOT EXCHANGEABLE
IN WHOLE OR IN PART OR TRANSFERABLE IN WHOLE OR IN PART EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.)
[If Restricted Securities, then insert -- THE SECURITIES EVIDENCED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.]
[If a Regulation S Security, then insert -- THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY
NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS SECURITY IS REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.]
10% SENIOR NOTES DUE 2006
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO. ▇▇▇▇▇▇▇▇▇]
[IF REGULATION S SECURITY - CUSIP NO. ▇▇▇▇▇▇▇▇▇]
[IF REGULATION S GLOBAL SECURITY - ISIN NO. - USU67502AA94]
No. ______________________ $ __________________
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Octel Developments PLC, a company organized under the laws of England and
Wales (herein called the "Issuer", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to [if this Security is a Global Security issued in bearer form,
then insert: the bearer hereof]. [If this Security is not a Global Security
issued in bearer form, then insert: __________, or registered assigns], the
principal sum of __________ Dollars [if this Security is a Global Security, then
insert: (which principal amount may from time to time be increased or decreased
to such other principal amounts by adjustments made on the records of the
trustee hereinafter referred to in accordance with the Indenture)] on May 1,
2006, and to pay interest thereon from May 5, 1998 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 1 and November 1 in each year, commencing November 1, 1998
at the rate of 10% per annum, until the principal hereof is paid or made
available for payment [If Initial Securities, then insert: provided, however,
that in the event that (i) by the 60th day after the Issue Date, neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement has
been filed with the Commission; (ii) by the 180th day after the date of the
Issue Date, the Registered Exchange Offer is not consummated; (iii) by the 45th
day after the Issuer is obligated to file the Shelf Registration Statement such
filing has not occurred; (iv) by the 90th day after the Issuer becomes obligated
to file a Shelf Registration Statement such Shelf Registration Statement has not
been declared effective by the Commission or (v) after either the Exchange Offer
Registration Statement or the Shelf Registration Statement is declared
effective, such Registration Statement thereafter ceases to be effective or
useable for its intended purposes without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective immediately (each such event referred to
in clauses (i) through (v), a "Registration Default" and each period during
which a Registration Default has occurred and is continuing, a "Registration
Default Period"), then, as liquidated damages for such Registration Default,
special interest ("Special Interest"), in addition to the rate of interest per
annum shown above, shall accrue at a per annum rate of 0.25% for the first 90
days of the Registration Default Period, at a per annum rate of 0.50% for the
second 90 days of the Registration Default Period, at a per annum rate of 0.75%
for the third 90 days of the Registration Default Period and at a per annum rate
of 1.0%
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thereafter for the remaining portion of the Registration Default Period;
provided that the Issuer shall in no event be required to pay Special Interest
for more than one Registration Default at any given time. The Special Interest
shall be payable in cash on the regular interest dates with respect to the
Securities. Any accrued and unpaid interest (including Special Interest) on this
Security upon the issuance of an Exchange Security (as defined in the Indenture)
in exchange for this Security shall cease to be payable to the Holder hereof but
such accrued and unpaid interest (including Special Interest) shall be payable
on the next Interest Payment Date for such Exchange Security to the Holder
thereof [if not a Global Security in bearer form, insert: on the related Regular
Record Date].] The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to [If this Security is a Global Security issued in bearer form, then insert:
the bearer hereof on the Interest Payment Date] [If this Security is not a
Global Security issued in bearer form, then insert: the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be
February 15 or August 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date]. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Interest Payment Date and may either be paid to [If this Security is a
Global Security issued in bearer form, then insert: the bearer hereof on the
Special Payment Date] [If this Security is not a Global Security issued in
bearer form, then insert: the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date,] or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
All payments made by or on behalf of the Issuer on or with respect to the
Securities (whether or not in the form of Definitive Notes), and all payments
made by or on behalf of Parent under or with respect to the Parent Guaranty will
be made without withholding or deduction for, or on account of, any present or
future taxes, duties,
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assessments or governmental charges of whatever nature (collectively, "Taxes")
imposed or levied by or on behalf of the United Kingdom (or the jurisdiction of
incorporation of any Successor Company of either) or any political subdivision
thereof or any authority having power to tax therein (each a "Tax Authority"),
unless the withholding or deduction of such Taxes is then required by law. If
any deduction or withholding for, or on account of, any Taxes of any Tax
Authority shall at any time be required on any payments made by the Issuer (or
Successor Company) on or with respect to the Securities or by Parent (or
Successor Company) under or with respect to the Parent Guaranty, including
payments of principal, redemption price, interest, additional interest or
premium, the Issuer or Parent, as the case may be, will pay such additional
amounts (the "Additional Amounts") as may be necessary in order that the net
amounts received in respect of such payments by the Holders of the Securities
(including Additional Amounts) or the Trustee, as the case may be, after such
withholding or deduction, equal the respective amounts which would have been
received in respect of such payments in the absence of such withholding or
deduction; except that no such Additional Amounts will be payable with respect
to:
(i) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any payments on a
Security held by or on behalf of a Holder or a beneficial owner who is
liable for such Taxes in respect of such Security by reason of the Holder
or beneficial owner having some connection with the United Kingdom or the
jurisdiction of incorporation of any Successor Company (including being a
citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present in,
the United Kingdom or the jurisdiction of incorporation of any Successor
Company) other than by the mere holding of such Security or enforcement of
rights thereunder or the receipt of payments in respect thereof;
(ii) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any Taxes that are
imposed or withheld as a result of a change in law after the Issue Date
where such withholding or imposition is by reason of the failure of the
Holder or beneficial owner of the Security to comply with any reasonable
request by the Issuer to provide information concerning the nationality,
residence or identity of such Holder or
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beneficial owner or to make any declaration or similar claim or satisfy any
information or reporting requirement, (A) if such compliance is required or
imposed by a statute, treaty, regulation or administrative practice of the
taxing jurisdiction as a precondition to exemption from all or part of such
Taxes, (B) such Holder may legally comply with such requirements and (C) at
least 30 days prior to the date on which the Issuer shall apply this clause
(ii), the Issuer shall have notified such Holders of such requirements;
(iii) except in the case of the winding up of the Issuer, any Security
presented for payment (where presentation is required) in the United
Kingdom or the jurisdiction of incorporation of any Successor Company
(unless presentment could not have been made elsewhere); or
(iv) any Security presented for payment (where Securities are in the
form of Definitive Notes and presentation is required) more than 30 days
after the relevant payment is first made available for payment to the
Holder (except to the extent that the Holder would have been entitled to
Additional Amounts had the Security been presented on any day (including
the last day) within such 30 day period).
Such Additional Amounts will also not be payable where, had the beneficial
owner of the Security been the Holder of the Security, it would not have been
entitled to payment of Additional Amounts by reason of any of clauses (i) to
(iv) inclusive above.
Where required by applicable law, the Issuer, Parent or any Paying Agent,
as the case may be, will also (i) make any required withholding or deduction in
respect of any Taxes and (ii) remit the full amount deducted or withheld to the
relevant Tax Authority in accordance with applicable law. The Issuer or Parent,
as the case may be, will furnish or cause to be furnished to the Trustee, within
30 days after the date of the payment of any Taxes due pursuant to applicable
law, certified copies of tax receipts satisfactory to the Trustee evidencing
such payment by the Issuer or Parent, as the case may be. Copies of such
receipts will be made available to Holders of Notes that are outstanding on the
date of such withholding or deduction for or on account of Taxes upon request.
Further, the Issuer or Parent, as the case may be, will indemnify and hold
harmless
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each Holder of Notes (other than a Holder described in clauses (i)-(iv) of
paragraph (a) above) and upon written request will promptly reimburse each such
Holder for the amount of (1) any Taxes levied or imposed and paid by such ▇▇▇▇▇▇
as a result of payments made on or with respect to the Notes or under or with
respect to the Parent Guarantee, (2) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto and (3) any
Taxes imposed with respect to any reimbursement under (1) or (2), but excluding
any Taxes based on a Holder's net income.
Whenever in the Indenture or under the Securities 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 mention shall be deemed to
include mention of the payment of Additional Amounts provided for this Section
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
The Issuer or Parent, as the case may be, will pay any present or future
stamp, court or documentary taxes, or any other excise or property taxes,
charges or similar levies which arise in any jurisdiction from the execution,
delivery or registration of the Securities, the Parent Guaranty or any other
document or instrument referred to therein, or the receipt of any payments on or
with respect to the Securities or under or with respect to the Parent Guaranty,
excluding any such taxes, charges or similar levies imposed by any jurisdiction
outside of the United Kingdom, the United States of America or any jurisdiction
in which a Paying Agent is located, other than those resulting from, or required
to be paid in connection with, the enforcement of the Securities or any other
such document or instrument following the occurrence of any Event of Default
with respect to the Securities.
The Issuer shall promptly pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and in the
Indenture. Principal and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with the Indenture
money sufficient to pay all principal and interest then due and the Trustee or
the Paying Agent, as the case may be, is not prohibited from paying such money
to the Securityholders on that date pursuant to the terms of the Indenture.
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Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated:
OCTEL DEVELOPMENTS PLC,
by
----------------------
Name:
Title:
by
----------------------
Name:
Title:
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SECTION 14.03. Form of Reverse of Security. This Security is one of a
duly authorized issue of Securities of the Issuer designated as its 10% Senior
Notes due 2006 (the "Securities") issued under an Indenture, dated as of May 5,
1998 (herein called the "Indenture"), between the Issuer, Octel Corp., as the
guarantor (the "Guarantor") and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture). Reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Issuer, the Guarantor, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor more than 60
days' notice by mail to each Holder of Securities to be redeemed at such
Holder's registered address, in amounts of $1,000 or an integral multiple of
$1,000, at any time on or after May 1, 2002 and prior to maturity, as a whole or
in part, at the election of the Issuer, at the following Redemption Prices
(expressed as percentages of the principal amount) plus accrued interest to the
Redemption Date (subject to the right of Holders [If this Security is not a
Global Security issued in bearer form, insert: on the relevant Regular Record
Date] on the relevant record date to receive interest due on the relevant
Interest Payment Date), if redeemed during the 12-month period commencing May 1,
of each of the years indicated below:
Redemption
Year Price
---- ----------
2002 105.000%
2003 103.333%
2004 101.667%
2005 and
thereafter 100.000%
In addition, at any time prior to May 1, 2002, the Securities will be
redeemable, in whole or from time to time in part, at the option of the Issuer
on any date, upon not less than 30 nor more than 60 days' prior notice, at a
redemption price equal to the greater of (i) 100% of the principal amount of the
Securities to be redeemed and
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(ii) the sum of the present values of (A) the redemption price of such Security
at May 1, 2002 (as set forth in the table above), and (B) the remaining
scheduled payments of interest thereon to May 1, 2002 (exclusive of interest
accrued to such redemption date) discounted to such redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 50 basis points, plus, in either case, accrued and unpaid
interest on the principal amount being redeemed to such redemption date;
provided that installments of interest on Securities which are due and payable
on an interest payment date falling on or prior to the relevant redemption date
shall be payable to the Holders of such Securities at the close of business on
the relevant regular record date according to their terms and the provisions of
the Indenture.
The Indenture requires the Issuer to provide for the retirement, by
redemption, of $37.5 million principal amount of the Securities on each of May
1, 2003, May 1, 2004 and May 1, 2005, in each case at a redemption price equal
to 100% of the principal amount thereof, plus accrued interest to the redemption
date. The Issuer may, at its option, receive credits against such mandatory
redemptions for the principal amount of Securities acquired or redeemed (other
than through this mandatory redemption provision) by the Issuer and surrendered
to the Trustee for cancelation.
The Securities may be redeemed, at the option of the Issuer, in whole but
not in part, at any time upon giving not less than 30 or nor more than 60 days'
notice to the Holders (which notice shall be irrevocable), at a redemption price
equal to the principal amount thereof, together with accrued and unpaid
interest, if any, to the date fixed by the Issuer for redemption (a "Tax
Redemption Date") and all Additional Amounts, if any, then due and which will
become due on the tax Redemption Date as a result of the redemption or
otherwise, if the Issuer determines that, as a result of (i) any change in, or
amendment to, the laws or treaties (or any regulations, protocols or rulings
promulgated thereunder) of the United Kingdom (or any political subdivision or
taxing authority of the United Kingdom) affecting taxation which change or
amendment becomes effective on or after the Issue Date, (ii) any change in
position regarding the application, administration or interpretation of such
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after
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the Issue Date or (iii) the issuance of Definitive Securities due to (A) DTC
being at any time unwilling or unable to continue as or ceasing to be a clearing
agency registered under the Exchange Act, and a successor to DTC registered as a
clearing agency under the Exchange Act is not able to be appointed by the Issuer
within 90 days or (B) the Book-Entry Depositary being at any time unwilling or
unable to continue as a book-entry depositary and a successor Book-Entry
Depositary is not able to be appointed by the Issuer within 90 days, the Issuer
is or on the next interest payment date the Issuer would be, required to pay
Additional Amounts, and the Issuer determines that such payment obligation
cannot be avoided by the Issuer taking reasonable measures. Notwithstanding the
foregoing, no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Issuer would be obligated to make such
payment or withholding if a payment in respect of the Securities was then due.
Prior to the publication or, where relevant, mailing of any notice of redemption
of the Securities pursuant to the foregoing, the Issuer will deliver to the
Trustee an Opinion of Counsel to the effect that the circumstances referred to
above exist. The trustee shall accept such opinion as sufficient evidence of the
satisfaction of the conditions precedent described above, in which event it
shall be conclusive and binding on the Holders.
The Indenture provides that, subject to certain conditions, upon the
occurrence of a Change of Control, each Holder shall have the right to require
that the Issuer repurchase such Holder's Securities at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant interest
payment date).
[If not a Global Security: In the event of redemption or purchase pursuant
to an Offer to Purchase of this Security in part only, a new Security or
Securities of like tenor for the unredeemed or unpurchased portion hereof will
be issued in the name of the Holder hereof upon the cancelation hereof.]
In the event of a deposit or withdrawal of a beneficial interest in this
Security (including upon an exchange, transfer, redemption or repurchase of this
Security in part only) effected in accordance with the Applicable Procedures,
the Security Registrar, upon receipt
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of notice of such event from the Depositary's custodian for this Security,
shall make an adjustment on its records to reflect an increase or decrease of
the outstanding principal amount of this Security resulting from such deposit
or withdrawal, as the case may be, and shall instruct the Book-Entry Depositary
to make a similar notation in its book-entry system to the corresponding
Depositary Interest.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof with the consent of the holders of a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a purchase of, or a tender offer or exchange for, the
Securities). In addition, any past default or compliance with any provisions
may also be waived with the consent of the holders of a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for,
Securities).
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security, or (ii) certain restrictive covenants
with respect to this Security, in each case upon compliance with certain
conditions set forth therein.
Unless the context otherwise requires, the Initial Securities, the
Exchange Securities and the Private Exchange Securities shall constitute one
series for all purposes under the Indenture, including without limitation,
amendments, waivers, and redemptions.
[If this Security is not a Global Security issued in bearer form, then
insert: As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in the Borough of Manhattan, the City of New
York, New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the issuer and the Security Registrar duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and like tenor
and
121
114
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.]
The Global Securities are issuable only in bearer form without coupons in
denominations of $1,000 and any integral multiple thereof. Definitive Securities
shall be integral multiple thereof. Definitive Securities shall be issuable in
registered form without interest coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a like tenor and
aggregate principal amount of Securities of a different authorized denomination,
as requested by the Holder surrendering the same.
The bearer of this Security shall be treated as the owner of this Security
for all purposes.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
[If this Security is not a global Security issued in bearer form, insert:
Prior to due presentment of this Security for registration of transfer, the
Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor,
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Issuer, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.]
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months; Special Interest shall be computed on the basis of a
360-day year and the number of days actually elapsed.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
122
115
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
-------- ------------------ ------------------ ------------------ ------------------
123
116
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.06 or 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only a part of this Security purchased by
the Issuer pursuant to Section _____________ of the Indenture, state the
amount $_____________
Dated: Your Signature:
-------------- ---------------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
----------------------------------------------
Notice: Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Security Registrar which
requirements will include membership or
participation in STAMP or such other "signature
guarantee program" as may be determined by the
Trustee in addition to, or in substitution for
STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
SECTION 14.04. Form of Trustee's Certificate of Authentication. This
is one of the Securities referred to in the within-mentioned Indenture.
Dated: IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
as Trustee
by
----------------------------
Authorized Signatory
124
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
OCTEL DEVELOPMENTS PLC.
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Company Secretary
OCTEL CORP.
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST
by
-----------------------
Name:
Title:
125
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
OCTEL DEVELOPMENTS PLC,
by
-------------------------------
Name:
Title:
OCTEL CORP.,
by
-------------------------------
Name:
Title:
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST
COMPANY, as Trustee,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: ASSISTANT VICE PRESIDENT
126
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to section 2.13(b)(i) and (iii)
of the Indenture)
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company,
as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10% Senior Notes due 2006 of
Octel Developments PLC (the "Securities")
Reference is made to the Indenture, dated as of May 5, 1998 (the
"Indenture"), among Octel Developments PLC (the "Issuer"), Octel Corp. (the
"Guarantor") and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust company, as Trustee. Terms used
herein and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used herein
as so defined.
This certificate relates to U.S. $_________________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). _______________________________________
CERTIFICATE No(s). _________________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned, as or on behalf of
the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take
127
delivery in the form of a Regulation S Security. In connection with such
transfer, the Owner hereby certifies that, unless such transfer is being
effected pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 904 or Rule 144 under the
Securities Act and with all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Issuer or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another designated
offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
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128
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Issuer or from an affiliate of the Issuer, whichever is later, and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at least
two years (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Issuer or from an affiliate of the Issuer, whichever is later, and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Issuer.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Purchasers.
Dated: ___________________________________
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
by:________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
A-3
129
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 2.13(b) (ii) and (iii) of the Indenture)
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company,
as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10% Senior Notes due 2006 of
Octel Developments PLC (the "Securities")
Reference is made to the Indenture, dates as of May 5, 1998 (the
"Indenture"), among Octel Developments PLC (the "Issuer"), Octel Corp. (the
"Guarantor") and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Trustee. Terms used
herein and defined in the indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used herein
as so defined.
This certificate relates to U.S. $____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________________
CERTIFICATE No(s). _____________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned, as or on behalf of
the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in
B-1
130
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 144A Transfer. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe
is a "qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account of a qualified
institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the Specified Securities were last acquired from the
Issuer or from an affiliate of the Issuer, whichever is later, and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Issuer or from an affiliate of the Issuer, whichever is
later, and the Owner is not, and during the preceding three months has
not been, an affiliate of the Issuer.
B-2
131
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Purchasers.
Dated: ______________________________________
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
by: ________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
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132
ANNEX C-- Form of Unrestricted
Securities Certificates
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 2.13(c))
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company,
as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10% Senior Notes due 2006 of
Octel Development PLC (the "Securities")
Reference is made to the Indenture, dated as of May 5, 1998 (the
"Indenture"), among Octel Developments PLC (the "Issuer"), Octel Corp. (the
"Guarantor") and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Trustee. Terms used
herein and defined in the Indenture or in Regulation S or Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act") are used herein
as so defined.
This certificate related to U.S. $__________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). _______________
CERTIFICATE No(s). _______________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Book-Entry Depositary who issued a Depositary Interest to the
Depositary (or its nominee) who holds such interest in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
133
EXHIBIT A
[FACE OF EXCHANGE SECURITY OR PRIVATE EXCHANGE SECURITY]
*
**
OCTEL DEVELOPMENTS PLC
10% SENIOR NOTES DUE 2006
CUSIP NO.__________
ISIN NO.___________
No.______ $_______________
Octel Developments PLC, a company organized under the laws of England and Wales
(herein called the "Issuer", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to the bearer hereof, the principal sum of __________________________ (which
principal amount may from time to time be increased or decreased to such other
principal amounts by adjustments made on the records of the Trustee hereinafter
referred to in accordance with the Indenture) on May 1, 2006, and to pay
interest thereon from May 5, 1998 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on May 1 and
November 1 in each year, commencing November 1, 1998 at the rate of 10% per
annum, until the principal hereof is paid or made available for payment;
provided, however, that in the event that (i) by the 60th day after the Issue
Date, neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement has been filed with the Commission; (ii) by the 180th day
after the date of the Issue Date, the Registered Exchange Offer is not
consummated; (iii) by the 45th day after the Issuer is obligated to file the
Shelf Registration Statement such filing has not occurred; (iv) by the 90th day
after the Issuer becomes obligated to file a Shelf Registration Statement such
Shelf Registration Statement has not been declared effective by the Commission
or (v) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective, such Registration Statement
thereafter ceases to be effective or useable for its intended purposes without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself declared effective
immediately (each such event referred to in
________________
*. If the Security is to be issued in global form add the Global
Securities legend from Section 14.02 of the Indenture.
**. If the Security is a Private Exchange Security issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its initial
allotment, add the Restricted Securities legend from Section 14.02 of the
Indenture.
E-1
134
clauses (i) through (v), a "Registration Defaults" and each period during which
a Registration Default has occurred and is continuing, a "Registration Default
Period"), then, as liquidated damages for such Registration default, special
interest ("Special Interest"), in addition to the rate of interest per annum
shown above, shall accrue at a per annum rate of 0.25% for the first 90 days of
the Registration Default Period, at a per annum rate of 0.50% for the second 90
days of the Registration Default Period, at a per annum rate of 0.75% for the
third 90 days of the Registration Default Period and at a per annum rate of 1.0%
thereafter for the remaining portion of the Registration Default Period;
provided that the Issuer shall in no event be required to pay Special Interest
for more than one Registration Default at any given time. The Special Interest
shall be payable in cash on the regular interest dates with respect to the
Securities. Any accrued and unpaid interest (including Special Interest) on this
Security upon the issuance of an Exchange Security in exchange for this Security
shall cease to be payable to the Holder hereof but such accrued and unpaid
interest (including Special Interest) shall be payable on the next Interest
Payment Date for such Exchange Security to the Holder thereof. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the bearer hereof on the Interest
Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Interest Payment Date and
may either be paid to the bearer hereof on the Special Payment Date or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
All payments made by or on behalf of the Issuer on or with respect to the
Securities (whether or not in the form of Definitive Notes), and all payments
made by or on behalf of Parent under or with respect to the Parent Guaranty will
be made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
(collectively, "Taxes") imposed or levied by or on behalf of the United Kingdom
(or the jurisdiction of incorporation of any Successor Company of either) or any
political subdivision thereof or any authority having power to tax therein (each
a "Tax Authority"), unless the withholding or deduction of such Taxes is then
required by law. If any deduction or withholding for, or on account of, any
Taxes of any Tax Authority shall at any time be required on any payments made by
the Issuer (or Successor Company) on or with respect to the Securities or by
Parent (or Successor Company) under or with respect to the Parent Guaranty,
including payments of principal, redemption price, interest, additional interest
or premium, the
135
Issuer or Parent, as the case may be, will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Securities (including
Additional Amounts) or the Trustee, as the case may be, after such withholding
or deduction, equal the respective amounts which would have been received in
respect of such payments in the absence of such withholding or deduction; except
that no such Additional Amounts will be payable with respect to:
(i) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any payments on a
Security held by or on behalf of a Holder or a beneficial owner who is
liable for such Taxes in respect of such Security by reason of the Holder
or beneficial owner having some connection with the United Kingdom or the
jurisdiction of incorporation of any Successor Company (including being a
citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present in,
the United Kingdom or the jurisdiction of incorporation of any Successor
Company) other than by the mere holding of such Security or enforcement of
rights thereunder or the receipt of payments in respect thereof;
(ii) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any Taxes that are
imposed or withheld as a result of a change in law after the Issue Date
where such withholding or imposition is by reason of the failure of the
Holder or beneficial owner of the Security to comply with any reasonable
request by the Issuer to provide information concerning the nationality,
residence or identity of such Holder or beneficial owner or to make any
declaration or similar claim or satisfy any information or reporting
requirement, (A) if such compliance is required or imposed by a statute,
treaty, regulation or administrative practice of the taxing jurisdiction as
a precondition to exemption from all or part of such Taxes, (B) such Holder
may legally comply with such requirements and (C) at least 30 days prior to
the date on which the Issuer shall apply this clause (ii), the Issuer shall
have notified such Holders of such requirements;
(iii) except in the case of the winding up of the Issuer, any Security
presented for payment (where presentation is required) in the United
Kingdom or the jurisdiction of incorporation of any Successor Company
(unless presentment could not have been made elsewhere); or
E-3
136
(iv) any Security presented for payment (where Securities are in the
form of Definitive Notes and presentation is required) more than 30 days
after the relevant payment is first made available for payment to the
Holder (except to the extent that the Holder would have been entitled to
Additional Amounts had the Security been presented on any day (including
the last day) within such 30 day period).
Such Additional Amounts will also not be payable where, had the beneficial
owner of the Security been the Holder of the Security, it would not have been
entitled to payment of Additional Amounts by reason of any of clauses (i) to
(iv) inclusive above.
Where required by applicable law, the Issuer, Parent or any Paying Agent,
as the case may be, will also (i) make any required withholding or deduction in
respect of any Taxes and (ii) remit the full amount deducted or withheld to the
relevant Tax Authority in accordance with applicable law. The Issuer or Parent,
as the case may be, will furnish or cause to be furnished to the Trustee,
within 30 days after the date of the payment of any Taxes due pursuant to
applicable law, certified copies of tax receipts satisfactory to the Trustee
evidencing such payment by the Issuer or Parent, as the case may be. Copies of
such receipts will be made available to Holders of Notes that are outstanding
on the date of such withholding or deduction for or on account of Taxes upon
request. Further, the Issuer or Parent, as the case may be, will indemnify and
hold harmless each Holder of Notes (other than a Holder described in clauses
(i) - (iv) of paragraph (a) above) and upon written request will promptly
reimburse each such Holder for the amount of (1) any Taxes levied or imposed
and paid by such Holder as a result of payments made on or with respect to the
Notes or under or with respect to the Parent Guarantee, (2) any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto and (3) any Taxes imposed with respect to any reimbursement under (1)
or (2), but excluding any Taxes based on a Holder's net income.
Whenever in the Indenture or under the Securities 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 mention shall be deemed to
include mention of the payment of Additional Amounts provided for in this
Section to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.
The Issuer or Parent, as the case may be, will pay any present or future
stamp, court or documentary taxes, or any other
E-4
137
excise or property taxes, charges or similar levies which arise in any
jurisdiction from the execution, delivery or registration of the Securities,
the Parent Guaranty or any other document or instrument referred to therein, or
the receipt of any payments on or with respect to the Securities or under or
with respect to the Parent Guaranty, excluding any such taxes, charges or
similar levies imposed by any jurisdiciton outside of the United Kingdom, the
United States of America or any jurisdiction in which a Paying Agent is
located, other than those resulting from, or required to be paid in connection
with, the enforcement of the Securities or any other such document or
instrument following the occurrence of any Event of Default with respect to the
Securities.
The Issuer shall promptly pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and in the
Indenture. Principal and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with the Indenture
money sufficient to pay all principal and interest then due and the Trustee or
the Paying Agent, as the case may be, is not prohibited from paying such money
to the Securityholders on that date pursuant to the terms of the Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
138
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated:
OCTEL DEVELOPMENTS PLC
by
-----------------------------
Name:
Title:
by
-----------------------------
Name:
Title:
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139
[REVERSE SIDE OF EXCHANGE NOTE OR PRIVATE EXCHANGE NOTE]
OCTEL DEVELOPMENTS PLC
10% Senior Notes due 2006
This Security is one of a duly authorized issue of Securities of the Issuer
designated as its 10% Senior Notes due 2006 (the "Securities") issued under an
Indenture, dated as of May 5, 1998 (herein called the "Indenture"), among the
Issuer, Octel Corp., as a guarantor (the "Guarantor") and IBJ ▇▇▇▇▇▇▇▇ Bank &
Trust Company, as trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture). Reference is hereby made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail to each Holder of Securities to be redeemed at such
Holder's registered address, in amounts of $1,000 or an integral multiple of
$1,000, at any time on or after May 1, 2002 and prior to maturity, as a whole or
in part, at the election of the Issuer, at the following Redemption Prices
(expressed as percentages of the principal amount) plus accrued interest to the
Redemption Date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant Interest Payment Date, if redeemed during
the 12-month period commencing May 1, of each of the years indicated below:
REDEMPTION
YEAR PRICE
---- ----------
2002 105.000%
2003 103.333%
2004 101.667%
2005 and
thereafter 100.000%
In addition, at any time prior to May 1, 2002, the Securities will be
redeemable, in whole or from time to time in part, at the option of the Issuer
on any date, upon not less than 30 nor more than 60 days' prior notice, at a
redemption price equal to the greater if (i) 100% of the principal amount of the
Securities to be redeemed and (ii) the sum of the present values of (A) the
redemption price of such Security at May 1, 2002 (as set forth in the table
above), and (B) the remaining scheduled
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payments of interest thereon to May 1, 2002 (exclusive of interest accrued to
such redemption date) discounted to such redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 50 basis points, plus, in either case, accrued and unpaid interest on
the principal amount being redeemed to such redemption date; provided that
installments of interest on Securities which are due and payable on an interest
payment date falling on or prior to the relevant redemption date shall be
payable to the Holders of such Securities at the close of business on the
relevant regular record date according to their terms and the provisions of the
Indenture.
The Indenture requires the Issuer to provide for the retirement, by
redemption, of $37.5 million principal amount of the Securities on each of
May 1, 2003, May 1, 2004 and May 1, 2005, in each case at a redemption price
equal to 100% of the principal amount thereof, plus accrued interest to the
redemption date. The Issuer may, at its option, receive credits against such
mandatory redemptions for the principal amount of Securities acquired or
redeemed (other than through this mandatory redemption provision) by the Issuer
and surrendered to the Trustee for cancelation.
The Securities may be redeemed, at the option of the Issuer, in whole but
not in part, at any time upon giving not less then 30 nor more than 60 days'
notice to the Holders (which notice shall be irrevocable), at a redemption price
equal to the principal amount thereof, together with accrued and unpaid
interest, if any, to the date fixed by the Issuer for redemption (a "Tax
Redemption Date") and all Additional Amounts, if any, then due and which will
become due on the Tax Redemption Date as a result of the redemption or
otherwise, if the Issuer determines that, as a result of (i) any change in, or
amendment to, the laws or treaties (or any regulations, protocols or rulings
promulgated thereunder) of the United Kingdom (or any political subdivision or
taxing authority of the United Kingdom) affecting taxation which change or
amendment becomes effective on or after the Issue Date, (ii) any change in
position regarding the application, administration or interpretation of such
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after the Issue Date or (iii) the
issuance of Definitive Securities due to (A) DTC being at any time unwilling or
unable to continue as or ceasing to be a clearing agency registered under the
Exchange Act, and a successor to DTC registered as a clearing agency under the
Exchange Act is not able to be appointed by the Issuer within 90 days or (B) the
Book-Entry Depositary being at any time unwilling or unable to continue as a
book-entry depositary and a successor Book-Entry Depositary is not able to be
appointed by
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the Issuer within 90 days, the Issuer is or on the next interest payment date
the Issuer would be, required to pay Additional Amounts, and the Issuer
determines that such payment obligation cannot be avoided by the Issuer taking
reasonable measures. Notwithstanding the foregoing, no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Issuer would be obligated to make such payment or withholding if a payment in
respect of the Securities was then due. Prior to the publication or, where
relevant, mailing of any notice of redemption of the Securities pursuant to the
foregoing, the Issuer will deliver to the Trustee an Opinion of Counsel to the
effect that the circumstances referred to above exist. The Trustee shall accept
such opinion as sufficient evidence of the satisfaction of the conditions
precedent described above, in which event it shall be conclusive and binding on
the Holders.
The Indenture provides that, subject to certain conditions, upon the
occurrence of a Change of Control, each Holder shall have the right to require
that the Issuer repurchase such Holder's Securities at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant interest
payment date).
In the event of a deposit or withdrawal of a beneficial interest in; this
Security (including upon an exchange, transfer, redemption or repurchase of this
Security in part only) effected in accordance with the Applicable Procedures,
the Security Registrar, upon receipt of notice of such event from the
Depositary's custodian for this Security, shall make an adjustment on its
records to reflect an increase or decrease of the outstanding principal amount
of this Security resulting from such deposit or withdrawal, as the case may be,
and shall instruct the Book-Entry Depositary to make a similar notation in its
book-entry system to the corresponding Depositary Interest.
If an Event of Default shall occur and be continuing the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof with the consent of the holders of a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a purchase of, or a tender offer or exchange for, the
Securities). In addition, any past default or compliance with any provisions may
also be waived with the consent of the holders of a majority in principal amount
of the Securities then outstanding (including
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consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities).
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security, or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
Unless the context otherwise requires, the Initial Securities, the Exchange
Securities and the Private Exchange Securities shall constitute one series for
all purposes under the Indenture, including without limitation, amendments,
waivers and redemptions.
The Global Securities are issuable only in bearer form without coupons in
denominations of $1,000 and any integral multiple thereof. Definitive Securities
shall be issuable in registered form without interest coupons in denominations
of $1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities are exchangeable
for a like tenor and aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
The bearer of this Security shall be treated as the owner of this Security
for all purposes.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months; Special Interest shall be computed on the basis of a
360-day year, as the case may be, and the number of days actually elapsed.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Principal amount Signature of
Amount of decrease Amount of increase of this Global authorized officer
in Principal in Principal Security following of Trustee or
Date of Amount of this Amount of this such decrease or Securities
Exchange Global Security Global Security increase Custodian
-------- ------------------ ------------------ ------------------- -------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuer
pursuant to Section 4.06 or 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only a part of this Security purchased by the
Issuer pursuant to Section ____________ of the Indenture, state the amount:
$___________
Dated:______________________ Your Signature:___________________________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:____________________________________________________________
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Security Registrar which requirements will include
membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the
Trustee in addition to, or in substitution for STAMP, all
in accordance with the Securities Exchange Act of 1934, as
amended.
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This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY,
As Trustee
by ______________________________
Authorized Signatory
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