EXHIBIT 4.2
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ALLEGHENY TECHNOLOGIES INCORPORATED
as Issuer
and
THE BANK OF NEW YORK
as Trustee
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Indenture
Dated as of December 18, 2001
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$300,000,000 8.375% Notes due 2011
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
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ss. 310 (a)..........................................................................................7.10
(b)..........................................................................................7.08
ss. 311 .............................................................................................7.03
ss. 312 ............................................................................................10.02
ss. 313 .............................................................................................7.06
ss. 314 (c).........................................................................................10.04
(e).........................................................................................10.05
ss. 315 (a)....................................................................................7.01, 7.02
(b)....................................................................................7.02, 7.05
(c)..........................................................................................7.01
(d)..........................................................................................7.02
(e)....................................................................................6.12, 7.02
ss. 316 (a)........................................................................2.05, 6.02, 6.04, 6.05
(b)....................................................................................6.06, 6.07
(c).........................................................................................10.02
ss. 317 (a) (1)......................................................................................6.08
(a) (2)......................................................................................6.09
(b)..........................................................................................2.03
ss. 318 ............................................................................................10.01
i
RECITALS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions...................................................................................1
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Section 1.02. Rules of Construction........................................................................10
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ARTICLE 2 THE NOTES
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Section 2.01 Form, Dating and Denominations; 144A, Reg S...................................................10
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Section 2.02. Execution and Authentication; Exchange Notes; Additional Notes...............................12
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Section 2.03. Registrar, Paying Agent and Authenticating Agent;
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Paying Agent to Hold Money in Trust........................................................13
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Section 2.04. Replacement Notes............................................................................13
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Section 2.05. Outstanding Notes............................................................................14
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Section 2.06. Temporary Notes..............................................................................14
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Section 2.07. Cancellation.................................................................................15
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Section 2.08. CUSIP and CINS Numbers.......................................................................15
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Section 2.09. Registration, Transfer and Exchange..........................................................15
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Section 2.10. Restrictions on Transfer and Exchange........................................................18
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Section 2.11. Temporary Offshore Global Notes..............................................................20
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ARTICLE 3 REDEMPTION
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Section 3.01. Optional Redemption..........................................................................21
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Section 3.02. Method and Effect of Redemption..............................................................21
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ARTICLE 4 COVENANTS
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Section 4.01. Payment of Notes.............................................................................22
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Section 4.02. Maintenance of Office or Agency..............................................................23
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Section 4.03. Paying Agent.................................................................................23
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Section 4.04. Certificate to Trustee.......................................................................24
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Section 4.05. Corporate Existence..........................................................................24
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Section 4.06. Securityholders' Lists.......................................................................24
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Section 4.07. Reports by the Issuer........................................................................24
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Section 4.08. Reports by the Trustee.......................................................................24
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Section 4.09. Appointment to Fill a Vacancy in Office of Trustee...........................................25
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Section 4.10. Limitation on Liens..........................................................................25
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Section 4.11. Limitation on Sale and Leaseback Transactions................................................26
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Section 4.12. Limitation on Guarantees.....................................................................26
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Section 4.13. Waiver of Certain Covenants..................................................................26
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ARTICLE 5 CONSOLIDATION, MERGER OR SALE OF ASSETS
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Section 5.01. Consolidation, Merger or Sale of Assets by the Company.......................................27
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Section 5.02. Successor Person Substituted.................................................................27
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ARTICLE 6 DEFAULT AND REMEDIES
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Section 6.01. Events of Default............................................................................28
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Section 6.02. Acceleration.................................................................................28
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Section 6.03. Other Remedies...............................................................................29
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Section 6.04. Waiver of Past Defaults......................................................................29
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Section 6.05. Control by Majority..........................................................................29
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Section 6.06. Limitation on Suits..........................................................................29
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Section 6.07. Rights of Holders to Receive Payment.........................................................30
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Section 6.08. Collection Suit by Trustee...................................................................30
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Section 6.09. Trustee May File Proofs of Claim.............................................................30
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Section 6.10. Priorities...................................................................................31
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Section 6.11. Restoration of Rights and Remedies...........................................................31
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Section 6.12. Undertaking for Costs........................................................................31
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Section 6.13. Rights and Remedies Cumulative...............................................................32
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Section 6.14. Delay or Omission Not Waiver.................................................................32
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Section 6.15. Waiver of Stay, Extension or Usury Laws......................................................32
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ARTICLE 7 THE TRUSTEE
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Section 7.01. General......................................................................................32
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Section 7.02. Certain Rights of Trustee....................................................................33
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Section 7.03. Individual Rights of Trustee.................................................................34
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Section 7.04. Trustee's Disclaimer.........................................................................34
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Section 7.05. Notice of Default............................................................................35
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Section 7.06. Reports by Trustee to Holders................................................................35
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Section 7.07. Compensation and Indemnity...................................................................35
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Section 7.08. Replacement of Trustee.......................................................................36
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Section 7.09. Successor Trustee by Merger..................................................................37
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Section 7.10. Eligibility..................................................................................37
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Section 7.11. Money Held in Trust..........................................................................37
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ARTICLE 8 DEFEASANCE AND DISCHARGE
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Section 8.01. Discharge of Company's Obligations...........................................................37
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Section 8.02. Legal Defeasance.............................................................................38
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Section 8.03. Covenant Defeasance..........................................................................39
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Section 8.04. Application of Trust Money...................................................................39
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Section 8.05. Repayment to Company.........................................................................40
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Section 8.06. Reinstatement................................................................................40
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ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS
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Section 9.01. Amendments Without Consent of Holders........................................................40
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Section 9.02. Amendments With Consent of Holders...........................................................41
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Section 9.03. Effect of Consent............................................................................42
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Section 9.04. Trustee's Rights and Obligations.............................................................43
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Section 9.05. Conformity with Trust Indenture Act..........................................................43
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Section 9.06. Payments for Consents........................................................................43
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ARTICLE 10 MISCELLANEOUS
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Section 10.01. Trust Indenture Act of 1939.................................................................43
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Section 10.02. Noteholder Communications; Noteholder Actions...............................................43
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Section 10.03. Notices.....................................................................................44
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Section 10.04. Certificate and Opinion as to Conditions Precedent..........................................45
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Section 10.05. Statements Required in Certificate or Opinion...............................................45
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Section 10.06. Payment Date Other Than a Business Day......................................................46
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Section 10.07. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.............................46
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Section 10.08. No Adverse Interpretation of Other Agreements...............................................46
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Section 10.09. Successors..................................................................................47
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Section 10.10. Duplicate Originals.........................................................................47
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Section 10.11. Separability................................................................................47
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Section 10.12. Table of Contents and Headings..............................................................47
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Section 10.13. No Liability of Directors, Officers, Employees, Incorporators and Stockholders..............47
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EXHIBITS
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Exhibit A.....................................................Form of Note
Exhibit B.....................................................Restricted Legend
Exhibit C.....................................................DTC Legend
Exhibit D.....................................................Regulation S Certificate
Exhibit E.....................................................Rule 144A Certificate
Exhibit F.....................................................Form of Certificate of Beneficial Ownership
Exhibit G.....................................................Institutional Accredited Investor Certificate
Exhibit H.....................................................Temporary Offshore Global Note Legend
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INDENTURE, dated as of December 18, 2001, between ALLEGHENY
TECHNOLOGIES INCORPORATED, a Delaware corporation (the "Company"), and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee.
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of up to $300,000,000 aggregate
principal amount of the Company's 8.375% Notes due 2011 (the "Notes", which term
includes, if and when issued, any Additional Notes and any Exchange Notes issued
therefor as provided herein). All things necessary to make this Indenture a
valid and legally binding agreement of the Company, in accordance with its
terms, have been done, and the Company has done all things necessary to make the
Notes (in the case of the Additional Notes, when duly authorized), when issued,
executed and delivered by the Company and authenticated and delivered by the
Trustee, the valid and legally binding obligations of the Company as hereinafter
provided.
This Indenture is subject to, and will be governed by, the
provisions of the Trust Indenture Act that are required to be a part of and
govern indentures qualified under the Trust Indenture Act.
THIS INDENTURE WITNESSETH
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, the parties hereto covenant and agree, for the
equal and proportionate benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Additional Interest" means additional interest owed to the
Holders pursuant to a Registration Rights Agreement.
"Additional Notes" means any notes issued under this Indenture
in addition to the Original Notes, including any Exchange Notes issued in
exchange for such Additional Notes, having the same terms in all respects as the
Original Notes except that interest will accrue on the Additional Notes from
their date of issuance.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the
1
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent or Authenticating
Agent.
"Agent Member" means a member of, or a participant in, the
Depositary.
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, as of any particular time, the present value (discounted at
the rate of interest implicit in the terms of the lease involved in such Sale
and Leaseback Transaction, as determined in good faith by the Company) of the
obligation of the lessee thereunder for net rental payments (excluding, however,
any amounts required to be paid by such lessee, whether or not designated as
rent or additional rent, on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates or similar charges and any amounts
required to be paid by such lessee thereunder contingent upon monetary inflation
or the amount of sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges) during the remaining term of such lease
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
"Authenticating Agent" refers to a Person engaged to
authenticate the Notes in the stead of the Trustee.
"bankruptcy default" has the meaning assigned to such term in
Section 6.01(e).
"Board of Directors" means the board of directors or
comparable governing body of the Company, or any committee thereof duly
authorized to act on its behalf.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City or in the city where the
Corporate Trust Office of the Trustee is located are authorized by law to close.
"Certificate of Beneficial Ownership" means a certificate
substantially in the form of Exhibit F.
"Certificated Note" means a Note in registered individual form
without interest coupons.
"Clearstream" means Clearstream Banking, S.A. and its
successors.
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such in the first paragraph
of this Indenture or any successor obligor under this Indenture and the Notes
pursuant to Article 5.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time
of selection and in accordance with customary
2
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets," which may be determined as
of a date not more than 60 days prior to the happening of an event for which
such determination is being made, means the total of all the assets appearing on
the consolidated balance sheet of the Company and its Subsidiaries, less the
following:
(i) current liabilities;
(ii) intangible assets, including without limitation, such
items as goodwill, trademarks, trade names, patents and unamortized debt
discount and expense carried as an asset on said balance sheet; and
(iii) appropriate adjustments on account of minority interests
of other Persons holding stock in any Subsidiary of the Company.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee is principally administered,
which at the date of this Indenture is located at ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Debt" means all indebtedness for money borrowed.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means the depositary of each Global Note, which
will initially be DTC.
"DTC" means The Depository Trust Company, a New York
corporation, and its successors.
"Discharged" means, for purposes of Section 8.03, that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by, and obligations under, the Notes and to have satisfied all the
obligations under this Indenture relating to the Notes (and the Trustee, at the
expense of the Company, shall execute proper instruments prepared by the Company
acknowledging the same), except (i) rights of registration of transfer and
exchange, and the Company's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Notes, (iii)
rights of Holders of Notes to receive from the trust fund described in Section
8.01(a)(ii)(B), payments of principal of, and premium (not relating to optional
redemption), if any, and interest on the Notes, (iv) the rights, obligations and
immunities of the Trustee hereunder and (v) the rights of the Holders as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them.
3
"DTC Legend" means the legend set forth in Exhibit C.
"Domestic Subsidiary" means any Subsidiary formed under the
laws of, or conducting its principal operations within, the United States of
America or any State or territory thereof.
"Euroclear" means Euroclear Bank S.A./N.V., and its successors
or assigns, as operator of the Euroclear System.
"Event of Default" has the meaning assigned to such term in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Exchange Notes" means the Notes of the Company issued
pursuant to this Indenture in exchange for, and in an aggregate principal amount
equal to, the Initial Notes or any Initial Additional Notes in compliance with
the terms of a Registration Rights Agreement and containing terms substantially
identical to the Initial Notes or any Initial Additional Notes (except that (i)
such Exchange Notes will be registered under the Securities Act and will not be
subject to transfer restrictions or bear the Restricted Legend, and (ii) the
provisions relating to Additional Interest will be eliminated).
"Exchange Offer" means an offer by the Company to the Holders
of the Initial Notes or any Initial Additional Notes to exchange outstanding
Notes for Exchange Notes, as provided for in a Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange
Offer Registration Statement as defined in a Registration Rights Agreement.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time.
"Global Note" means a Note in registered global form without
interest coupons.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof, in whole or
in part; provided that the term "Guarantee" does not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Noteholder" means the registered holder of any
Note.
4
"Indenture" means this indenture, as amended or supplemented
from time to time.
"Initial Additional Notes" means Additional Notes issued in an
offering not registered under the Securities Act and any Notes issued in
replacement thereof, but not including any Exchange Notes issued in exchange
therefor.
"Initial Notes" means the Notes issued on the Issue Date and
any Notes issued in replacement thereof, but not including any Exchange Notes
issued in exchange therefor.
"Initial Purchasers" means the initial purchasers party to a
purchase agreement with the Company relating to the sale of the Initial Notes or
Initial Additional Notes by the Company.
"Institutional Accredited Investor Certificate" means a
certificate substantially in the form of Exhibit G hereto.
"interest", in respect of the Notes, unless the context
otherwise requires, refers to interest and Additional Interest, if any.
"Interest Payment Date" means each June 15 and December 15 of
each year, commencing June 15, 2002.
"Issue Date" means the date on which the Notes are originally
issued under this Indenture.
"Lien" means any mortgage, pledge, lien, encumbrance, charge
or security interest of any kind; provided, however, that none of the following
shall be deemed to be a Lien:
(1) pledges or deposits under workmen's compensation,
unemployment insurance or similar statutes and mechanics',
workmen's, repairmen's, materialmen's, carriers' or other
similar liens arising in the ordinary course of business or
deposits or pledges to obtain the release of any such liens;
(2) liens for taxes or assessments or governmental
charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings; landlord's
liens on property held under lease; and any other liens of a
nature similar to those herein above described in this clause
(2) which do not, in the opinion of the Company, materially
impair the use of such property in the operation of the
business of the Company or a Domestic Subsidiary or the value
of such property for the purpose of such business; or
(3) any easement or similar encumbrance, the
existence of which does not impair the use of the property
subject thereto for the purposes for which it is used.
"Non-U.S. Person" means a Person that is not a U.S. person, as
defined in Regulation S.
5
"Notes" has the meaning assigned to such term in the Recitals.
"Officer" means the chairman of the Board of Directors, the
president or chief executive officer, any vice president, the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, of the Company.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the Board of Directors, the president or
chief executive officer, an executive vice president, senior vice president or a
vice president and (ii) by the chief financial officer, the treasurer or any
assistant treasurer or the secretary or any assistant secretary.
"Offshore Global Note" means a Global Note representing Notes
issued and sold pursuant to Regulation S.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company.
"Original Notes" means the Initial Notes and any Exchange
Notes issued in exchange therefor.
"Paying Agent" refers to a Person engaged to perform the
obligations of the Trustee in respect of payments made or funds held hereunder
in respect of the Notes.
"Permanent Offshore Global Note" means an Offshore Global Note
that does not bear the Temporary Offshore Global Note Legend.
"Permitted Liens" means
(1) Liens on any property acquired, constructed or
improved by the Company or any Domestic Subsidiary after the
Issue Date, which are created or assumed contemporaneously
with or within three years after, such acquisition, or
completion of construction or improvement (or within six
months thereafter pursuant to a firm commitment for financing
arrangements entered into with a lender or investor within
such three-year period) to secure or provide for the payment
of all or any part of the purchase price of such property or
the cost of such construction or improvement incurred after
the Issue Date, or, in addition to Liens contemplated by
clauses (2) or (3) below, Liens on any property existing at
the time of acquisition thereof, provided that the Lien shall
not apply to any property theretofore owned by the Company or
any Domestic Subsidiary other than, in the case of any such
construction or improvement, any theretofore unimproved real
property on which the property so constructed, or the
improvement, is located;
(2) Liens on any property, shares of stock or
indebtedness existing at the time of acquisition thereof and
acquired from a Person that is merged or consolidated with or
into the Company or a Domestic Subsidiary after the Issue
Date;
6
(3) with respect to any corporation that becomes a
Domestic Subsidiary after the Issue Date, Liens on property,
or shares of stock or indebtedness of a corporation existing
at the time such corporation becomes a Domestic Subsidiary and
not incurred in connection with or anticipation of such
corporation becoming a Domestic Subsidiary;
(4) Liens to secure Debt of a Domestic Subsidiary
owed to the Company or Debt of a Domestic Subsidiary owed to
another Domestic Subsidiary;
(5) Liens in favor of the United States or any State
thereof, or any department, agency or instrumentality or
political subdivision of the United States or any state
thereof, to secure partial progress, advance or other payments
pursuant to any contract or statute;
(6) any Lien existing on the Issue Date; or
(7) Liens for the sole purpose of extending, renewing
or replacing Debt, in whole or in part, secured by any Lien
referred to in the foregoing clauses (1) to (6), inclusive,
provided, however, that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be
limited to all or a part of the property that secured the Lien
so extended, renewed or replaced (plus improvements on such
property).
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of any Debt means the principal amount of such
Debt, (or if such Debt was issued with original issue discount, the face amount
of such Debt less the remaining unamortized portion of the original issue
discount of such Debt), together with, unless the context otherwise indicates,
any premium then payable on such Debt.
"Principal Property" means any manufacturing plant or other
similar facility owned by the Company or any Domestic Subsidiary, the book value
of the real property, plant and equipment of which (as shown, without deduction
of any depreciation reserves, on the books of the owner or owners) is not less
than two percent of Consolidated Net Tangible Assets except (a) any such plant
or facility which our Board of Directors determines is not of material
importance to the total business conducted, or assets owned, by the Company and
its Domestic Subsidiaries as an entirety, or (b) any portion of any such plant
or facility which our Board of Directors determines not to be of material
importance to the use or operation thereof.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Company.
7
"Reference Treasury Dealer" means (i) each of ▇.▇. ▇▇▇▇▇▇
Securities Inc. and Banc of America Securities LLC, and their respective
successors and three other nationally recognized investment banking firms that
are Primary U.S. Government Securities dealers in New York City (each, a
"Primary Treasury Dealer") specified from time to time by the Company. However,
if any the foregoing shall cease to be a Primary Treasury Dealer, the Company
shall substitute therefor another Primary Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such redemption date.
"Register" has the meaning assigned to such term in Section
2.09.
"Registrar" means a Person engaged to maintain the Register.
"Registration Rights Agreement" means (i) the Registration
Rights Agreement dated on or about the Issue Date between the Company and the
Initial Purchasers party thereto with respect to the Initial Notes, and (ii)
with respect to any Additional Notes, any registration rights agreements between
the Company and the Initial Purchasers party thereto relating to rights given by
the Company to the purchasers of Additional Notes to register such Additional
Notes or exchange them for Notes registered under the Securities Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the June 1 or December 1 (whether or not a Business Day) next
preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially
in the form of Exhibit D hereto.
"Resale Registration Statement" means the Resale Registration
Statement as defined in the Registration Rights Agreement.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Legend" means the legend set forth in Exhibit C.
8
"Restricted Period" means the relevant 40-day distribution
compliance period as defined in Regulation S.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Certificate" means (i) a certificate substantially
in the form of Exhibit E hereto or (ii) a written certification addressed to the
Company and the Trustee to the effect that the Person making such certification
(x) is acquiring such Note (or beneficial interest) for its own account or one
or more accounts with respect to which it exercises sole investment discretion
and that it and each such account is a qualified institutional buyer within the
meaning of Rule 144A, (y) is aware that the transfer to it or exchange, as
applicable, is being made in reliance upon the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A, and (z) acknowledges that
it has received such information regarding the Company as it has requested
pursuant to Rule 144A(d)(4) or has determined not to request such information.
"Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing to the Company or any Domestic Subsidiary
of any Principal Property (or portion thereof) (except for temporary leases for
a term, including any renewal thereof, of not more than 36 months and except for
leases between the Company and a Subsidiary or between Subsidiaries), which
Principal Property (or portion thereof) has been or is to be sold or transferred
by the Company or such Domestic Subsidiary to such Person.
"Securities Act" means the Securities Act of 1933.
"Stated Maturity" means (i) with respect to any Debt, the date
specified as the fixed date on which the final installment of principal of such
Debt is due and payable or (ii) with respect to any scheduled installment of
principal of or interest on any Debt, the date specified as the fixed date on
which such installment is due and payable as set forth in the documentation
governing such Debt, not including any contingent obligation to repay, redeem or
repurchase prior to the regularly scheduled date for payment.
"Subsidiary" means with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more Subsidiaries of such Person (or a combination thereof). Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Company.
"Temporary Offshore Global Note" means an Offshore Global Note
that bears the Temporary Offshore Global Note Legend.
"Temporary Offshore Global Note Legend" means the legend set
forth in Exhibit H.
"Trustee" means the party named as such in the first paragraph
of this Indenture or any successor trustee under this Indenture pursuant to
Article 7.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
9
"U.S. Global Note" means a Global Note that bears the
Restricted Legend representing Notes issued and sold pursuant to Rule 144A.
"U.S. Government Securities" means obligations issued or
directly and fully guaranteed or insured by the United States of America or by
any agent or instrumentality thereof, provided that the full faith and credit of
the United States of America is pledged in support thereof.
"Voting Stock," as applied to the stock of any corporation,
means stock of any class or classes (however designated) having by the terms
thereof ordinary voting power to elect a majority of the members of the board of
directors (or other governing body) of such corporation other than stock having
such power only by reason of the happening of a contingency.
Section 1.02. Rules of Construction.
Unless the context otherwise requires or except as otherwise
expressly provided,
(1) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(2) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any
particular Section, Article or other subdivision;
(3) all references to Sections or Articles or
Exhibits refer to Sections or Articles or Exhibits of or to
this Indenture unless otherwise indicated;
(4) references to agreements or instruments, or to
statutes or regulations, are to such agreements or
instruments, or statutes or regulations, as amended from time
to time (or to successor statutes and regulations); and
(5) in the event that a transaction meets the
criteria of more than one category of permitted transactions
or listed exceptions the Company may classify such transaction
as it, in its sole discretion, determines.
ARTICLE 2
THE NOTES
Section 2.01 Form, Dating and Denominations; 144A, Reg S. (a)
The Notes and the Trustee's certificate of authentication will
be substantially in the form attached as Exhibit A. The terms
and provisions contained in the form of the Notes annexed as
Exhibit A constitute, and are hereby expressly made, a part of
this Indenture. The Notes may have notations, legends or
endorsements required by law, rules of or agreements with
national securities exchanges to which the Company is subject,
or usage. Each Note will be dated the date of its
authentication. The Notes will be
10
issuable in denominations of $1,000 in principal amount and
any multiple of $1,000 in excess thereof.
(b)(i) Except as otherwise provided in
Section 2.01(c), Section 2.09(b)(iv), Section 2.10(b)(iii),
Section 2.10(b)(v), or Section 2.10(c), each Initial Note or
Initial Additional Note (other than a Permanent Offshore Note)
will bear the Restricted Legend.
(ii) Each Global Note, whether or not an
Initial Note or Initial Additional Note,
will bear the DTC Legend.
(iii) Each Temporary Offshore Global
Note will bear the Temporary Offshore Global
Note Legend.
(iv) Initial Notes and Initial Additional
Notes offered and sold in reliance on
Regulation S will be issued as provided in
Section 2.11(a).
(v) Initial Notes and Initial Additional
Notes offered and sold in reliance on any
exception under the Securities Act other
than Regulation S and Rule 144A will be
issued, and upon the request of the Company
to the Trustee, Initial Notes offered and
sold in reliance on Rule 144A may be issued,
in the form of Certificated Notes.
(vi) Exchange Notes will be issued,
subject to Section 2.09(b), in the form of
one or more Global Notes.
(c)(i) If the Company determines (upon the
advice of counsel and such other certifications and evidence
as the Company may reasonably require) that a Note is eligible
for resale pursuant to Rule 144(k) under the Securities Act
(or a successor provision) and that the Restricted Legend is
no longer necessary or appropriate in order to ensure that
subsequent transfers of the Note (or a beneficial interest
therein) are effected in compliance with the Securities Act,
or
(ii) after an Initial Note or any Initial
Additional Note is (x) sold pursuant to an
effective registration statement under the
Securities Act, pursuant to the Registration
Rights Agreement or otherwise, or (y) is
validly tendered for exchange into an
Exchange Note pursuant to an Exchange Offer,
the Company may instruct the Trustee to cancel the Note and
issue to the Holder thereof (or to its transferee) a new Note
of like tenor and amount, registered in the name of the
Holder thereof (or its transferee), that does not bear the
Restricted Legend, and the Trustee will comply with such
instruction.
(d) By its acceptance of any Note bearing
the Restricted Legend (or any beneficial interest in such a
Note), each Holder thereof and each
11
owner of a beneficial interest therein acknowledges the
restrictions on transfer of such Note (and any such beneficial
interest) set forth in this Indenture and in the Restricted
Legend and agrees that it will transfer such Note (and any
such beneficial interest) only in accordance with this
Indenture and such legend.
Section 2.02. Execution and Authentication; Exchange Notes;
Additional Notes.
(a) An Officer shall execute the Notes for the Company by
facsimile or manual signature in the name and on behalf of the Company. If an
Officer whose signature is on a Note no longer holds that office at the time the
Note is authenticated, the Note will still be valid.
(b) A Note will not be valid until the Trustee manually signs
the certificate of authentication on the Note, with the signature conclusive
evidence that the Note has been authenticated under this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication. The Trustee will authenticate and
deliver
(i) Initial Notes for original issue in the aggregate
principal amount not to exceed $300,000,000,
(ii) Initial Additional Notes from time to time for
original issue in aggregate principal amounts specified by the
Company, and
(iii) Exchange Notes from time to time for issue in
exchange for a like principal amount of Initial Notes or
Initial Additional Notes,
in each case, after the following conditions have been met:
(A) Receipt by the Trustee of an Officers'
Certificate specifying:
(1) the amount of Notes to be
authenticated and the date on which the
Notes are to be authenticated,
(2) whether the Notes are to be
Initial Notes, Additional Notes or Exchange
Notes,
(3) in the case of Initial
Additional Notes, that the issuance of such
Notes does not contravene any provision of
Article 4,
(4) whether the Notes are to be
issued as one or more Global Notes or
Certificated Notes,
(5) other information the Company
may determine to include or the Trustee may
reasonably request, and
12
(6) in the case of Initial
Additional Notes, receipt by the Trustee of
an Opinion of Counsel confirming that the
Holders of the outstanding Notes will be
subject to federal income tax in the same
amounts, in the same manner and at the same
times as would have been the case if such
Additional Notes were not issued.
(B) In the case of Exchange Notes,
effectiveness of an Exchange Offer Registration Statement and
consummation of the exchange offer thereunder (and receipt by
the Trustee of an Officers' Certificate to that effect).
Initial Notes or Initial Additional Notes exchanged for
Exchange Notes will be cancelled by the Trustee.
(C) In any case contemplated by this Section
2.02, receipt by the Trustee of an Opinion of Counsel and
Trustee's Certificate pursuant to Section 10.04 hereof.
Section 2.03. Registrar, Paying Agent and Authenticating
Agent; Paying Agent to Hold Money in Trust.
(a) The Company may appoint one or more Registrars and one
or more Paying Agents, and the Trustee may appoint an Authenticating Agent, in
which case each reference in this Indenture to the Trustee in respect of the
obligations of the Trustee to be performed by that Agent will be deemed to be
references to the Agent. The Company may act as Registrar or (except for
purposes of Article 8) Paying Agent. In each case the Company and the Trustee
will enter into an appropriate agreement with the Agent implementing the
provisions of this Indenture relating to the obligations of the Trustee to be
performed by the Agent and the related rights. The Company initially appoints
the Trustee as Registrar and Paying Agent.
(b) The Company will require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for the
payment of principal of and interest on the Notes and will promptly notify the
Trustee of any default by the Company in making any such payment. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require the Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent will have no
further liability for the money so paid over to the Trustee.
Section 2.04. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if a
Holder claims that its Note has been lost, destroyed or wrongfully taken, the
Company will issue and the Trustee will authenticate a replacement Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding. Every replacement Note is an additional obligation of the Company
and entitled to the benefits of this Indenture. An indemnity must be furnished
that is
13
sufficient in the judgment of both the Trustee and the Company to protect the
Company and the Trustee from any loss they may suffer if a Note is replaced. The
Company may charge the Holder for the expenses of the Company and the Trustee in
replacing a Note. In case the mutilated, lost, destroyed or wrongfully taken
Note has become or is about to become due and payable, the Company in its
discretion may pay the Note instead of issuing a replacement Note.
Section 2.05. Outstanding Notes.
(a) Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for
(i) Notes cancelled by the Trustee or delivered to it
for cancellation;
(ii) any Note which has been replaced pursuant to
Section 2.04 unless and until the Trustee and the Company
receive proof satisfactory to them that the replaced Note is
held by a bona fide purchaser; and
(iii) on or after the maturity date or any redemption
date, those Notes payable or to be redeemed on that date for
which the Trustee (or Paying Agent, other than the Company or
an Affiliate of the Company) holds money sufficient to pay all
amounts then due.
(b) A Note does not cease to be outstanding because the
Company or one of its Affiliates holds the Note, provided that in determining
whether the Holders of the requisite principal amount of the outstanding Notes
have given or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder, Notes owned by the Company or any
Affiliate of the Company will be disregarded and deemed not to be outstanding,
(it being understood that in determining whether the Trustee is protected in
relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Notes which a Responsible Officer of the
Trustee actually knows to be so owned will be so disregarded). Notes so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the Company or any
Affiliate of the Company.
Section 2.06. Temporary Notes.
Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee will authenticate temporary Notes. Temporary Notes
will be substantially in the form of definitive Notes but may have insertions,
substitutions, omissions and other variations determined to be appropriate by
the Officer executing the temporary Notes, as evidenced by the execution of the
temporary Notes. If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes will be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for the purpose pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any temporary Notes the
Company will execute and the Trustee will authenticate and deliver in exchange
14
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes will be entitled to the
same benefits under this Indenture as definitive Notes.
Section 2.07. Cancellation.
The Company at any time may deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee for cancellation any Notes previously authenticated hereunder which the
Company has not issued and sold. Any Registrar or the Paying Agent will forward
to the Trustee any Notes surrendered to it for transfer, exchange or payment.
The Trustee will cancel all Notes surrendered for transfer, exchange, payment or
cancellation and dispose of them in accordance with its normal procedures or the
written instructions of the Company. The Company may not issue new Notes to
replace Notes it has paid in full or delivered to the Trustee for cancellation.
Section 2.08. CUSIP and CINS Numbers.
The Company in issuing the Notes may use "CUSIP" and "CINS"
numbers, and the Trustee will use CUSIP numbers or CINS numbers in notices of
redemption or exchange as a convenience to Holders, the notice to state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of redemption or exchange. The
Company will promptly notify the Trustee of any change in the CUSIP or CINS
numbers.
Section 2.09. Registration, Transfer and Exchange.
(a) The Notes will be issued in registered form only, without
coupons, and the Company shall cause the Trustee to maintain a register (the
"Register") of the Notes, for registering the record ownership of the Notes by
the Holders and transfers and exchanges of the Notes.
(b) (i) Each Global Note will be registered in the name of the
Depositary or its nominee and, so long as DTC is serving as
the Depositary thereof, will bear the DTC Legend.
(ii) Each Global Note will be delivered to the Trustee as
custodian for the Depositary. Transfers of a Global Note (but
not a beneficial interest therein) will be limited to
transfers thereof in whole, but not in part, to the
Depositary, its successors or their respective nominees,
except (A) as set forth in Section 2.09(b)(iv) and (B)
transfers of portions thereof in the form of Certificated
Notes may be made upon request of an Agent Member (for itself
or on behalf of a beneficial owner) by written notice given to
the Trustee by or on behalf of the Depositary in accordance
with customary procedures of the Depositary and in compliance
with this Section and Section 2.10.
(iii) Agent Members will have no rights under this
Indenture with respect to any Global Note held on their behalf
by the Depositary, and the Depositary may
15
be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and Holder of
such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, the Depositary or its nominee may grant proxies
and otherwise authorize any Person (including any Agent Member
and any Person that holds a beneficial interest in a Global
Note through an Agent Member) to take any action which a
Holder is entitled to take under this Indenture or the Notes,
and nothing herein will impair, as between the Depositary and
its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any
security.
(iv) If (A) the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for a Global
Note and a successor depositary is not appointed by the
Company within 90 days of the notice or (B) an Event of
Default has occurred and is continuing and the Trustee has
received a request from the Depositary, the Trustee will
promptly exchange each beneficial interest in the Global Note
for one or more Certificated Notes in authorized denominations
having an equal aggregate principal amount registered in the
name of the owner of such beneficial interest, as identified
to the Trustee by the Depositary, and thereupon the Global
Note will be deemed canceled. If such Note does not bear the
Restricted Legend, then the Certificated Notes issued in
exchange therefor will not bear the Restricted Legend. If such
Note bears the Restricted Legend, then the Certificated Notes
issued in exchange therefor will bear the Restricted Legend,
provided that any Holder of any such Certificated Note issued
in exchange for a beneficial interest in a Temporary Offshore
Global Note will have the right upon presentation to the
Trustee of a duly completed Certificate of Beneficial
Ownership after the Restricted Period to exchange such
Certificated Note for a Certificated Note of like tenor and
amount that does not bear the Restricted Legend, registered in
the name of such Holder.
(c) Each Certificated Note will be registered in the name of
the Holder thereof or its nominee.
(d) A Holder may transfer a Note (or a beneficial interest
therein) to another Person or exchange a Note (or a beneficial interest therein)
for another Note or Notes of any authorized denomination by presenting to the
Trustee a written request therefor stating the name of the proposed transferee
or requesting such an exchange, accompanied by any certification, opinion or
other document required by Section 2.10. The Trustee will promptly register any
transfer or exchange that meets the requirements of this Section by noting the
same in the register maintained by the Trustee for the purpose; provided that
(i) no transfer or exchange will be effective until
it is registered in such register and
(ii) the Trustee will not be required (A) to issue,
register the transfer of or exchange any Note for a period of
15 days before a selection of Notes to be redeemed, (B) to
register the transfer of or exchange any Note so selected for
redemption, except, in the case of a partial redemption, that
portion of
16
any Note not being redeemed, or (C) if a redemption is to
occur after a Regular Record Date but on or before the
corresponding Interest Payment Date, to register the transfer
of or exchange any Note on or after the Regular Record Date
and before the date of redemption. Prior to the registration
of any transfer, the Company, the Trustee and their agents
will treat the Person in whose name the Note is registered as
the owner and Holder thereof for all purposes (whether or not
the Note is overdue), and will not be affected by notice to
the contrary.
From time to time the Company will execute and the Trustee
will authenticate additional Notes as necessary in order to permit the
registration of a transfer or exchange in accordance with this Section.
No service charge will be imposed in connection with any
transfer or exchange of any Note, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than a transfer tax or other similar governmental
charge payable upon exchange pursuant to subsection (b)(iv)).
(e) (i) Global Note to Global Note. If a beneficial
interest in a Global Note is transferred or exchanged for a
beneficial interest in another Global Note, the Trustee will
(A) record a decrease in the principal amount of the Global
Note being transferred or exchanged equal to the principal
amount of such transfer or exchange and (B) record a like
increase in the principal amount of the other Global Note. Any
beneficial interest in one Global Note that is transferred to
a Person who takes delivery in the form of an interest in
another Global Note, or exchanged for an interest in another
Global Note, will, upon transfer or exchange, cease to be an
interest in such Global Note and become an interest in the
other Global Note and, accordingly, will thereafter be subject
to all transfer and exchange restrictions, if any, and other
procedures applicable to beneficial interests in such other
Global Note for as long as it remains such an interest.
(ii) Global Note to Certificated Note. If a
beneficial interest in a Global Note is transferred or
exchanged for a Certificated Note, the Trustee will (A) record
a decrease in the principal amount of such Global Note equal
to the principal amount of such transfer or exchange and (B)
deliver one or more new Certificated Notes in authorized
denominations having an equal aggregate principal amount to
the transferee (in the case of a transfer) or the owner of
such beneficial interest (in the case of an exchange),
registered in the name of such transferee or owner, as
applicable.
(iii) Certificated Note to Global Note. If a
Certificated Note is transferred or exchanged for a beneficial
interest in a Global Note, the Trustee will (A) cancel such
Certificated Note, (B) record an increase in the principal
amount of such Global Note equal to the principal amount of
such transfer or exchange and (C) in the event that such
transfer or exchange involves less than the entire principal
amount of the canceled Certificated Note, deliver to the
Holder thereof one or more new Certificated Notes in
authorized denominations having an aggregate principal amount
equal to the untransferred or unexchanged
17
portion of the canceled Certificated Note, registered in the
name of the Holder thereof.
(iv) Certificated Note to Certificated Note. If a
Certificated Note is transferred or exchanged for another
Certificated Note, the Trustee will (A) cancel the
Certificated Note being transferred or exchanged, (B) deliver
one or more new Certificated Notes in authorized denominations
having an aggregate principal amount equal to the principal
amount of such transfer or exchange to the transferee (in the
case of a transfer) or the Holder of the canceled Certificated
Note (in the case of an exchange), registered in the name of
such transferee or Holder, as applicable, and (C) if such
transfer or exchange involves less than the entire principal
amount of the canceled Certificated Note, deliver to the
Holder thereof one or more Certificated Notes in authorized
denominations having an aggregate principal amount equal to
the untransferred or unexchanged portion of the canceled
Certificated Note, registered in the name of the Holder
thereof.
Section 2.10. Restrictions on Transfer and Exchange.
(a) The transfer or exchange of any Note (or a beneficial
interest therein) may only be made in accordance with this Section and Section
2.09 and, in the case of a Global Note (or a beneficial interest therein), the
applicable rules and procedures of the Depositary. The Trustee shall refuse to
register any requested transfer or exchange that the Trustee actually knows does
not comply with the preceding sentence.
(b) Subject to paragraph (c), the transfer or exchange of any
Note (or a beneficial interest therein) of the type set forth in column A below
for a Note (or a beneficial interest therein) of the type set forth opposite in
column B below may only be made in compliance with the certification
requirements (if any) described in the clause of this paragraph set forth
opposite in column C below.
A B C
U.S. Global Note U.S. Global Note (i)
U.S. Global Note Offshore Global Note (ii)
U.S. Global Note Certificated Note (iii)
Offshore Global Note U.S. Global Note (iv)
Offshore Global Note Offshore Global Note (i)
Offshore Global Note Certificated Note (v)
Certificated Note U.S. Global Note (iv)
Certificated Note Offshore Global Note (ii)
Certificated Note Certificated Note (iii)
(i) No certification is required.
(ii) The Person requesting the transfer or exchange
must deliver or cause to be delivered to the Trustee a duly
completed Regulation S Certificate; provided that if the
requested transfer or exchange is made by the
18
Holder of a Certificated Note that does not bear the
Restricted Legend, then no certification is required.
(iii) The Person requesting the transfer or exchange
must deliver or cause to be delivered to the Trustee (A) a
duly completed Rule 144A Certificate, (B) a duly completed
Regulation S Certificate or (C) a duly completed Institutional
Accredited Investor Certificate, and/or an Opinion of Counsel
and such other certifications and evidence as the Company or
the Trustee may reasonably require in order to determine that
the proposed transfer or exchange is being made in compliance
with the Securities Act and any applicable securities laws of
any state of the United States; provided that if the requested
transfer or exchange is made by the Holder of a Certificated
Note that does not bear the Restricted Legend, then no
certification is required. In the event that (x) the requested
transfer or exchange takes place after the Restricted Period
and a duly completed Regulation S Certificate is delivered to
the Trustee or (y) a Certificated Note that does not bear the
Restricted Legend is surrendered for transfer or exchange,
upon transfer or exchange the Trustee will deliver a
Certificated Note that does not bear the Restricted Legend.
(iv) The Person requesting the transfer or exchange
must deliver or cause to be delivered to the Trustee a duly
completed Rule 144A Certificate.
(v) Notwithstanding anything to the contrary
contained herein, no such exchange is permitted if the
requested exchange involves a beneficial interest in a
Temporary Offshore Global Note. If the requested transfer
involves a beneficial interest in a Temporary Offshore Global
Note, the Person requesting the transfer must deliver or cause
to be delivered to the Trustee (A) a duly completed Rule 144A
Certificate or (B) a duly completed Institutional Accredited
Investor Certificate and/or an Opinion of Counsel and such
other certifications and evidence as the Company may
reasonably require in order to determine that the proposed
transfer is being made in compliance with the Securities Act
and any applicable securities laws of any state of the United
States. If the requested transfer or exchange involves a
beneficial interest in a Permanent Offshore Global Note, no
certification is required and the Trustee will deliver a
Certificated Note that does not bear the Restricted Legend.
(c) No certification is required in connection with any
transfer or exchange of any Note (or a beneficial interest therein)
(i) after such Note is eligible for resale pursuant
to Rule 144(k) under the Securities Act (or a successor
provision); provided that the Company has provided the Trustee
with an Officer's Certificate to that effect, and the Company
may require from any Person requesting a transfer or exchange
in reliance upon this clause (i) an opinion of counsel and any
other reasonable certifications and evidence in order to
support such certificate; or
19
(ii) (A) sold pursuant to an effective registration
statement, pursuant to the Registration Rights Agreement or
otherwise or (B) which is validly tendered for exchange into
an Exchange Note pursuant to an Exchange Offer.
Any Certificated Note delivered in reliance upon this paragraph will not bear
the Restricted Legend.
(d) The Trustee will retain copies of all certificates,
opinions and other documents received in connection with the transfer or
exchange of a Note (or a beneficial interest therein), and the Company will have
the right, at its own expense, to inspect and make copies thereof at any
reasonable time upon written notice to the Trustee.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 2.11. Temporary Offshore Global Notes.
(a). Each Note originally sold by the Initial Purchasers in
reliance upon Regulation S will be evidenced by one or more Offshore Global
Notes that bear the Temporary Offshore Global Note Legend.
(b) An owner of a beneficial interest in a Temporary Offshore
Global Note (or a Person acting on behalf of such an owner) may provide to the
Trustee (and the Trustee will accept) a duly completed Certificate of Beneficial
Ownership at any time after the Restricted Period (it being understood that the
Trustee will not accept any such certificate during the Restricted Period).
Promptly after acceptance of a Certificate of Beneficial Ownership with respect
to such a beneficial interest, the Trustee will cause such beneficial interest
to be exchanged for an equivalent beneficial interest in a Permanent Offshore
Global Note, and will (i) permanently reduce the principal amount of such
Temporary Offshore Global Note by the amount of such beneficial interest and
(ii) increase the principal amount of such Permanent Offshore Global Note by the
amount of such beneficial interest.
(c) Notwithstanding anything to the contrary contained herein,
beneficial interests in a Temporary Offshore Global Note may be held through the
Depositary only through Euroclear and Clearstream and their respective direct
and indirect participants.
(d) Notwithstanding paragraph (b), if after the Restricted
Period any Initial Purchaser owns a beneficial interest in a Temporary Offshore
Global Note, such Initial Purchaser may, upon written request to the Trustee
accompanied by a certification as to its status as an Initial Purchaser,
exchange such beneficial interest for an equivalent beneficial interest in a
Permanent Offshore Global Note, and the Trustee will comply with such request
and will
20
(i) permanently reduce the principal amount of such Temporary Offshore Global
Note by the amount of such beneficial interest and (ii) increase the principal
amount of such Permanent Offshore Global Note by the amount of such beneficial
interest.
ARTICLE 3
REDEMPTION
Section 3.01. Optional Redemption.
At any time and from time to time, the Company may redeem the
Notes, in whole or in part, at a redemption price equal to the greater of (a)
100% of the principal amount of the Notes, plus accrued and unpaid interest
thereon to the date of redemption; or (b) the sum of the remaining scheduled
payments of principal of and interest on the Notes being redeemed (not including
any portion of the payments of interest accrued as of the date of redemption),
discounted to its present value as of the date of redemption, on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months), at the
Adjusted Treasury Rate, as determined by the Quotation Agent, plus 25 basis
points, plus accrued and unpaid interest on the principal amount being redeemed
to the date of redemption.
Section 3.02. Method and Effect of Redemption.
(a) If the Company elects to redeem Notes, it must notify the
Trustee of the redemption date and the principal amount of Notes to be redeemed
by delivering an Officers' Certificate at least 60 days before the redemption
date (unless a shorter period is satisfactory to the Trustee). If fewer than all
of the Notes are being redeemed, the Officers' Certificate must also specify a
record date not less than 15 days after the date the notice of redemption is
given to the Trustee, and the Trustee will select the Notes to be redeemed pro
rata, by lot or by any other method the Trustee in its sole discretion deems
appropriate, in denominations of $1,000 principal amount and multiples thereof.
The Trustee will notify the Company promptly of the Notes or portions of Notes
to be called for redemption. Notice of redemption must be sent by the Company
or, at the Company's request, by the Trustee in the name and at the expense of
the Company, to Holders whose Notes are to be redeemed at least 30 days but not
more than 60 days before the redemption date.
(b) The notice of redemption will identify the Notes to be
redeemed and will include or state the following:
(i) the redemption date;
(ii) the redemption price, including the portion
thereof representing any accrued interest;
(iii) the place or places where Notes are to be
surrendered for redemption;
(iv) Notes called for redemption must be so
surrendered in order to collect the redemption price;
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(v) on the redemption date the redemption price will
become due and payable on Notes called for redemption, and
interest on Notes called for redemption will cease to accrue
on and after the redemption date;
(vi) if any Note is redeemed in part, on and after
the redemption date, upon surrender of such Note, new Notes
equal in principal amount to the unredeemed portion will be
issued; and
(vii) if any Note contains a CUSIP or CINS number, no
representation is being made as to the correctness of the
CUSIP or CINS number either as printed on the Notes or as
contained in the notice of redemption and that the Holder
should rely only on the other identification numbers printed
on the Notes.
(c) Once notice of redemption is sent to the Holders, Notes
called for redemption become due and payable at the redemption price on the
redemption date, and upon surrender of the Notes called for redemption, the
Company shall redeem such Notes at the redemption price. Commencing on the
redemption date, Notes redeemed will cease to accrue interest. Upon surrender of
any Note redeemed in part, the Holder will receive a new Note equal in principal
amount to the unredeemed portion of the surrendered Note.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
(a). The Company agrees to pay the principal of and interest
on the Notes on the dates and in the manner provided in the Notes and this
Indenture. Not later than 9:00 A.M. (New York City time) on the due date of any
principal of or interest on any Notes, or any redemption price of the Notes, the
Company will deposit with the Trustee (or Paying Agent) money in immediately
available funds sufficient to pay such amounts, provided that if the Company or
any Affiliate of the Company is acting as Paying Agent, it will, on or before
each due date, segregate and hold in a separate trust fund for the benefit of
the Holders a sum of money sufficient to pay such amounts until paid to such
Holders or otherwise disposed of as provided in this Indenture. In each case,
the Company will promptly notify the Trustee of its compliance with this
paragraph.
(b) An installment of principal or interest will be considered
paid on the date due if the Trustee (or Paying Agent, other than the Company or
any Affiliate of the Company) holds on that date money designated for and
sufficient to pay the installment. If the Company or any Affiliate of the
Company acts as Paying Agent, an installment of principal or interest will be
considered paid on the due date only if paid to the Holders.
(c) The Company agrees to pay interest on overdue principal,
and, to the extent lawful, overdue installments of interest at the rate per
annum specified in the Notes.
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(d) Payments in respect of the Notes represented by the Global
Notes are to be made by wire transfer of immediately available funds to the
accounts specified by the Holders of the Global Notes. With respect to
Certificated Notes, the Company will make all payments by wire transfer of
immediately available funds to the accounts specified by the Holders thereof or,
if no such account is specified, by mailing a check to each Holder's registered
address.
Section 4.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the
City of New York, an office or agency where Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company hereby initially designates the Corporate
Trust Office of the Trustee as such office of the Company. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company fails to maintain
any such required office or agency or fails to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served to the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be surrendered or presented for
any of such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 4.03. Paying Agent.
Whenever the Company shall appoint a paying agent other than
the Trustee, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Notes (whether such sums
have been paid to it by the Company or by any other obligor on the Notes) in
trust for the benefit of the holders of the Notes or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment of the
principal of or interest on the Notes when the same shall be due and payable,
and
(c) pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance of the
failure referred to in clause 4.03(b) above.
Anything in this section to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder,
as required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
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Anything in this section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this section are subject to the
provision of Section 8.05.
Section 4.04. Certificate to Trustee.
The Company will furnish to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate (which need not comply with
Section 10.04) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice provided under
this Indenture). If the Company shall not be in such compliance, the certificate
shall specify such non-compliance and the nature and status thereof of which the
officer shall have knowledge.
Section 4.05. Corporate Existence.
Subject to Article 5, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
Section 4.06. Securityholders' Lists.
If and so long as the Trustee shall not be the Registrar of
the Notes, the Company will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes pursuant to Section 312 of the Trust
Indenture Act (a) semi-annually not more than 15 days after each record date for
the payment of semi-annual interest on the Notes, as herein above specified, as
of such record date, and (b) at such other times as the Trustee may request in
writing, within thirty days after receipt by the Company of any such request as
of a date not more than 15 days prior to the time such information is furnished.
Section 4.07. Reports by the Issuer.
The Company covenants to file with the Trustee, within 15 days
after the Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents, and other reports which
the Company may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
Section 4.08. Reports by the Trustee.
Any Trustee's report required under Section 313(a) of the
Trust Indenture Act of 1939 shall be transmitted on or before the first date for
the regular payment of semi-annual interest on the Notes next succeeding May 15
in each year, and shall be dated as of a date convenient to the Trustee no more
than 60 nor less than 45 days prior thereto (unless such
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May 15 is less than 45 days prior to such interest payment date, in which case
such report shall be (a) so transmitted on or before the second such interest
payment date next succeeding such May 15 and (b) as of a date determined as
provided above). A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Notes are listed, with the Commission and with the Company.
The Company will promptly notify the Trustee when the Notes are listed on any
stock exchange and of any delisting thereof.
Section 4.09. Appointment to Fill a Vacancy in Office of
Trustee.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 7.08(b),
a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.10. Limitation on Liens.
(a) The Company will not, nor will it permit any Domestic
Subsidiary to, directly or indirectly, issue, assume or Guarantee any Debt if
such Debt or Guarantee is secured by any Lien upon any Principal Property of the
Company or of a Domestic Subsidiary or upon any shares of stock or indebtedness
of any Domestic Subsidiary (whether such principal property, shares of stock or
indebtedness is owned at the Issue Date or thereafter acquired) without in any
such case effectively securing, concurrently with the issuance, assumption or
Guaranty of any such Debt, any series of Notes (together with, if the Company
shall so determine, any other indebtedness of or Guaranteed by the Company or
such Domestic Subsidiary ranking equally with such series of Notes and then
existing or thereafter created) equally and ratably with such Debt, so long as
such Debt is so secured; provided, however, that the foregoing restriction shall
not apply to Permitted Liens.
(b) The provisions of subsection (a) of this Section shall not
apply to the issuance, assumption or guarantee by the Company or any Domestic
Subsidiary of Debt secured by a Lien which would otherwise be subject to the
foregoing restrictions up to an aggregate amount which, together with (i) all
other Debt of the Company and its Domestic Subsidiaries secured by Liens (not
including Permitted Liens) that would otherwise be subject to the foregoing
restrictions and (ii) the Attributable Debt with respect to Sale and Leaseback
Transactions in existence at such time (other than any Sale and Leaseback
Transaction that, if such Sale and Leaseback Transaction had been a Lien, would
have been permitted by clause (1) of the definition of Permitted Lien), does not
at the time exceed 10% of Consolidated Net Tangible Assets.
(c) If at any time the Company or any Domestic Subsidiary
shall issue, assume or Guarantee any Debt secured by any Lien and if subsection
(a) of this Section requires that the Notes be secured equally and ratably with
such Debt, the Company will promptly execute, at its expense, any instruments
necessary to so equally and ratably secure the Notes and deliver the same to the
Trustee and will promptly furnish to the Trustee:
(i) an Officers' Certificate stating that the
covenant of the Company contained in subsection (a) of this
Section has been complied with; and
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(ii) an Opinion of Counsel to the effect that such
covenant has been complied with, and that any instruments
executed by the Company in the performance of such covenant
comply with the requirements of such covenant.
In the event that the Company shall hereafter secure any
series of Notes equally and ratably with any other obligation or indebtedness
pursuant to the provisions of this Section, the Trustee is hereby authorized,
but not required, to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable it to
enforce effectively the rights of the Holders of the Notes so secured, equally
and ratably with such other obligation or indebtedness.
Section 4.11. Limitation on Sale and Leaseback Transactions.
The Company will not, nor will it permit any Domestic
Subsidiary to, enter into any Sale and Leaseback Transaction, unless:
(a) the Company or such Domestic Subsidiary would be entitled,
either pursuant to the provisions of paragraphs (a) or (b) of Section 4.10, to
incur Debt secured by a Lien on such Principal Property without equally and
ratably securing any of the Notes, or
(b) the Company or such Domestic Subsidiary shall, within 180
days of the effective date of any such arrangement, apply an amount equal to the
proceeds from such Sale and Leaseback Transaction relating to such Principal
Property (x) to the payment or other retirement of Debt incurred or assumed by
the Company that ranks senior to or pari passu with the Notes (other than, in
either case, Debt owed by the Company or any Subsidiary) or (y) to the purchase
of Principal Property (other than the Principal Property involved in such sale).
Section 4.12. Limitation on Guarantees.
The Company and its Domestic Subsidiaries will not enter into
any agreement pursuant to which any such Domestic Subsidiary Guarantees the
payment of Debt incurred by the Company without, in any such case, providing
concurrently with the Guarantee of such Debt, that any series of Notes be
equally and ratably guaranteed by such Domestic Subsidiary for so long as such
Debt is so Guaranteed.
Section 4.13. Waiver of Certain Covenants.
The Company may omit in respect of the Notes, in any
particular instance, to comply with any covenant or condition set forth in
Sections 4.10, 4.11 or 4.12, if before or after the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Notes at the
time outstanding, by act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
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ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.01. Consolidation, Merger or Sale of Assets by the
Company.
The Company shall not consolidate with or merge into any other
Person or sell, assign, convey or transfer or otherwise dispose of all or
substantially all of its properties and assets to any Person, unless:
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the
Company shall be a Person organized and validly existing under
the laws of the United States of America, any State thereof or
the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and
interest on all the Notes and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and
such supplemental indenture comply with paragraphs (a) and (b)
of this section 5.01 and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company in accordance with Section
5.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein. In the event of any such conveyance or
transfer, the Company as the predecessor Person may be dissolved, wound up or
liquidated at any time thereafter.
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ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" with respect to the Notes, occurs if:
(a) the Company defaults in the payment of interest
(including any Additional Interest) on any Note, when the same
becomes due and payable, and the default continues for a
period of 30 days;
(b) the Company defaults in the payment of the
principal of, or premium, if any, on any Note when the same
becomes due and payable at maturity, upon acceleration or
redemption, or otherwise;
(c) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company in
this Indenture or under the Notes and the default or breach
continues for a period of 90 days after written notice to the
Company by the Trustee or to the Company by the Holders of 25%
or more in aggregate principal amount of the Notes;
(d) an involuntary case or other proceeding is
commenced against the Company with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such
involuntary case or other proceeding remains undismissed and
unstayed for a period of 60 days; or an order for relief is
entered against the Company under the federal bankruptcy laws
as now or hereafter in effect;
(e) the Company (i) commences a voluntary case under
any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consents to the entry of an order
for relief in an involuntary case under any such law, (ii)
consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestration or similar official of the Company or for all or
substantially all of the property and assets of the Company or
(iii) effects any general assignment for the benefit of
creditors (an event of default specified in clause (d) or (e),
a "bankruptcy default").
Section 6.02. Acceleration.
(a) If an Event of Default, other than a bankruptcy default,
occurs and is continuing under this Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding, by
written notice to the Company (and to the Trustee if the notice is given by the
Holders), may, and the Trustee at the request of such Holders shall, declare the
principal of and accrued but unpaid interest on all the Notes to be immediately
due and payable. Upon a declaration of acceleration, such principal and interest
will become
28
immediately due and payable. If a bankruptcy default occurs, the principal of
and accrued but unpaid interest on all the Notes then outstanding will become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
(b) In the case of an Event of Default specified in Section
6.01(c), the Holders of a majority in aggregate principal amount of the
outstanding Notes by written notice to the Company and to the Trustee may waive
all past Defaults (except for Defaults in the payment of principal, any premium
on, or any interest on the Notes) and rescind and annul a declaration of
acceleration and its consequences if
(i) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, and interest
on the Notes that have become due solely by any such
declaration of acceleration, have been cured or waived, and
(ii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available
remedy by a proceeding at law or in equity to collect the payment of principal
of and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture. The Trustee may maintain a proceeding even if it
does not possess any of the Notes or does not produce any of them in the
proceeding.
Section 6.04. Waiver of Past Defaults.
Except as otherwise provided in Sections 6.02, 6.07 and 9.02,
the Holders of a majority in principal amount of the outstanding Notes may, by
notice to the Trustee, waive an existing Default and its consequences. Upon such
waiver, the Default will cease to exist, and any Event of Default arising
therefrom will be deemed to have been cured, but no such waiver will extend to
any subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
The Holders of a majority in aggregate principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may, upon the advice of
counsel, refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of Notes not joining in the giving of such direction, and may take any
other action it deems proper that is not inconsistent with any such direction
received from Holders of Notes.
Section 6.06. Limitation on Suits.
29
A Holder may not institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Notes, or for the appointment
of a receiver or trustee, or for any other remedy under this Indenture or the
Notes, unless:
(a) the Holder has previously given to the Trustee
written notice of a continuing Event of Default;
(b) Holders of at least 25% in aggregate principal
amount of outstanding Notes have made written request to the
Trustee to institute proceedings in respect of the Event of
Default in its own name as Trustee under this Indenture;
(c) Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(e) during such 60-day period, the Holders of a
majority in aggregate principal amount of the outstanding
Notes have not given the Trustee a direction that is
inconsistent with such written request.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding anything to the contrary, the right of a
Holder of a Note to receive payment of principal of or interest on its Note on
or after the Stated Maturity thereof, or to bring suit for the enforcement of
any such payment on or after such respective dates, may not be impaired or
affected without the consent of that Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
for the whole amount of principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent lawful, overdue
installments of interest, in each case at the rate specified in the Notes, and
such further amount as is sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee hereunder.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee hereunder) and the Holders allowed in any judicial proceedings relating
to the Company or its creditors or property, and is entitled and empowered
30
to collect, receive and distribute any money, securities or other property
payable or deliverable upon conversion or exchange of the Notes or upon any such
claims. Any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, if the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee hereunder. Nothing in this Indenture will be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee for all amounts due hereunder;
Second: to Holders for amounts then due and unpaid
for principal of and interest on the Notes, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Notes for
principal and interest; and
Third: to the Company or as a court of competent
jurisdiction may direct.
The Trustee, upon written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this
Section.
Section 6.11. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted a proceeding to
enforce any right or remedy under this Indenture and the proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to the Holder, then, subject to any determination in the
proceeding, the Company, the Trustee and the Holders will be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Company, the Trustee and the Holders will continue as though
no such proceeding had been instituted.
Section 6.12. 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 may require any party litigant in such suit
(other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys fees
and expenses, against any party litigant (other than the Trustee) in the suit
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not
31
apply to a suit by a Holder to enforce payment of principal of or interest on
any Note on the respective due dates, or a suit by Holders of more than 10% in
principal amount of the outstanding Notes.
Section 6.13. Rights and Remedies Cumulative.
No right or remedy conferred or reserved to the Trustee or to
the Holders under this Indenture is intended to be exclusive of any other right
or remedy, and all such rights and remedies are, to the extent permitted by law,
cumulative and in addition to every other right and remedy hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or exercise
of any right or remedy hereunder, or otherwise, will not prevent the concurrent
assertion or exercise of any other right or remedy.
Section 6.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default will impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 6.15. Waiver of Stay, Extension or Usury Laws.
The Company covenants, to the extent that it may lawfully do
so, that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of, or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
that may affect the covenants or the performance of this Indenture. The Company
hereby expressly waives, to the extent that it may lawfully do so, all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE 7
THE TRUSTEE
Section 7.01. General.
(a) The duties and responsibilities of the Trustee are as
provided by the Trust Indenture Act and as set forth herein. Whether or not
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee is subject
to this Article.
(b) Except during the continuance of an Event of
Default, the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no
implied covenants or obligations will be read into
32
this Indenture against the Trustee. In case an Event of
Default has occurred and is continuing, the Trustee shall
exercise those rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct.
Section 7.02. Certain Rights of Trustee.
Subject to Trust Indenture Act Sections 315(a) through (d):
(a) In the absence of bad faith on its part, the
Trustee may conclusively rely, and will be protected in acting
or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document (whether
in its original or facsimile form) 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, but, in the case of any document which
is specifically required to be furnished to the Trustee
pursuant to any provision hereof, the Trustee shall examine
the document to determine whether it conforms to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein). The Trustee, in its discretion, may
make further inquiry or investigation into such facts or
matters as it sees fit.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel conforming to Section 10.05 and the Trustee will not
be liable for any action it takes or omits to take in good
faith in reliance on the certificate or opinion.
(c) The Trustee may act through its attorneys and
agents and will not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee will be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders,
unless such Holders have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(e) The Trustee will not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within its rights or powers or for any action it
takes or omits to take in accordance with the direction of the
Holders in accordance with Section 6.05 relating to the time,
method and
33
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
(f) The Trustee may consult with counsel, and the
advice of such counsel or any Opinion of Counsel will be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(g) No provision of this Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties
hereunder, or in the exercise of its rights or powers, unless
it receives indemnity satisfactory to it against any loss,
liability or expense.
(h) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(i) The Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the outstanding Notes relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with
respect to the Notes.
(j) The Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this
Indenture.
(k) The rights, privileges, protections, immunities
and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed
to act hereunder.
Section 7.03. Individual Rights of Trustee.
The Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not the Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to
Trust Indenture Act Sections 310(b) and 311.
Section 7.04. Trustee's Disclaimer.
The Trustee (a) makes no representation as to the validity or
adequacy of this Indenture or the Notes, (b) is not accountable for the
Company's use or application of the proceeds from the Notes and (c) is not
responsible for any statement in the Notes other than its certificate of
authentication.
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Section 7.05. Notice of Default.
If any Default occurs and is continuing and is actually known
to a Responsible Officer of the Trustee, the Trustee will send notice of the
Default to each Holder within 90 days after it occurs, unless the Default has
been cured; provided that, except in the case of a default in the payment of the
principal of or interest on any Note, the Trustee may withhold the notice if and
so long as the board of directors, the executive committee or a trust committee
of Responsible Officers of the Trustee in good faith determines that withholding
the notice is in the interest of the Holders. Notice to Holders under this
Section will be given in the manner and to the extent provided in Trust
Indenture Act Section 313(c).
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with May 15, 2002,
the Trustee will mail to each Holder, as provided in Trust Indenture Act Section
313(c), a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a), and file such reports with each stock exchange upon which
the Notes are listed and with the Commission as required by Trust Indenture Act
Section 313(d).
Section 7.07. Compensation and Indemnity.
(a) The Company will pay the Trustee compensation as agreed
upon in writing for its services. The compensation of the Trustee is not limited
by any law on compensation of a Trustee of an express trust. The Company will
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee, including the
reasonable compensation and expenses of the Trustee's agents and counsel.
(b) The Company will fully indemnify the Trustee for, and hold
it harmless against, any and all loss, damage, claims or liability or expense
incurred (including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) and legal fees and expenses) by it
without negligence or bad faith on its part arising out of or in connection with
the acceptance or administration of this Indenture and its duties under this
Indenture and the Notes, including the costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Notes.
(c) To secure the Company's payment obligations in this
Section, the Trustee will have a lien prior to the Notes on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, and interest on particular
Notes.
(d) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(d) or Section
6.01(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
35
(e) The provisions of this Section shall survive the
termination of this Indenture and the resignation or removal of the Trustee.
Section 7.08. Replacement of Trustee.
(a) (i) The Trustee may resign at any time by written notice
to the Company.
(ii) The Holders of a majority in principal amount of
the outstanding Notes may remove the Trustee by written notice
to the Trustee.
(iii) If the Trustee is no longer eligible under
Section 7.10 or in the circumstances described in Trust
Indenture Act Section 310(b), any Holder that satisfies the
requirements of Trust Indenture Act Section 310(b) may
petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(iv) The Company may remove the Trustee if: (A) the
Trustee is no longer eligible under Section 7.10; (B) the
Trustee is adjudged a bankrupt or an insolvent; (C) a receiver
or other public officer takes charge of the Trustee or its
property; or (D) the Trustee becomes incapable of acting.
A resignation or removal of the Trustee and appointment of a successor Trustee
will become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
(b) If the Trustee has been removed by the Holders, Holders of
a majority in principal amount of the Notes may appoint a successor Trustee with
the consent of the Company. Otherwise, if the Trustee resigns or is removed, or
if a vacancy exists in the office of Trustee for any reason, the Company will
promptly appoint a successor Trustee. If the successor Trustee does not deliver
its written acceptance within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Notes may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) Upon delivery by the successor Trustee of a written
acceptance of its appointment to the retiring Trustee and to the Company, (i)
the retiring Trustee will, upon payment of its charges, transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07, (ii) the resignation or removal of the retiring Trustee will
become effective, and (iii) the successor Trustee will have all the rights,
powers and duties of the Trustee under this Indenture. Upon request of any
successor Trustee, the Company will execute any and all instruments for fully
vesting in and confirming to the successor Trustee all such rights, powers and
trusts. The Company will give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders, and include
in the notice the name of the successor Trustee and the address of its Corporate
Trust Office.
(d) Notwithstanding replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 will continue for the
benefit of the retiring Trustee.
36
(e) The Trustee agrees to give the notices provided for in,
and otherwise comply with, Trust Indenture Act Section 310(b).
Section 7.09. Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
will be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee in this Indenture.
Section 7.10. Eligibility.
This Indenture must always have a Trustee that satisfies the
requirements of Trust Indenture Act Section 310(a) and has a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition.
Section 7.11. Money Held in Trust.
The Trustee will not be liable for interest on any money
received by it except as it may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law and except for money held in trust under Article 8.
ARTICLE 8
DEFEASANCE AND DISCHARGE
Section 8.01. Discharge of Company's Obligations.
(a) Subject to paragraph (b), the Company's obligations under
the Notes and this Indenture will terminate if:
(i) all Notes previously authenticated and delivered
(other than (A) destroyed, lost or stolen Notes that have been
replaced or (B) Notes that are considered paid pursuant to
Section 4.01(b) or (C) Notes for whose payment money or U.S.
Government Securities have been held in trust and then repaid
to the Company pursuant to Section 8.05) have been delivered
to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder; or
(ii) (A) the Notes mature within one year, or all of
them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice
of redemption,
(B) the Company irrevocably deposits in trust
with the Trustee, as trust funds solely for the
benefit of the Holders, cash in U.S. dollars or U.S.
Government Securities or a combination thereof
sufficient, in the opinion of a nationally recognized
firm of
37
independent public accountants expressed in a written
certificate delivered to the Trustee, without
consideration of any reinvestment, to pay principal
of, premium, if any, and interest and Additional
Interest, if any, on the Notes to maturity or
redemption, as the case may be, and to pay all other
sums payable by it hereunder,
(C) no Default has occurred and is continuing on
the date of the deposit,
(D) the deposit will not result in a breach or
violation of, or constitute a default under, this
Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound,
and
(E) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, in
each case stating that all conditions precedent
provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with.
(b) After satisfying the conditions in clause (a)(i), only the
Company's obligations under Section 7.07 will survive. After satisfying the
conditions in clause (a)(ii), only the Company's obligations in Article 2 and
Sections 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06 will survive. In either case, the
Trustee upon request will acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture other than the surviving
obligations.
Section 8.02. Legal Defeasance.
After the 91st day following the deposit referred to in clause
(a) below, the Company will be deemed to have paid and will be discharged from
its obligations in respect of the Notes and this Indenture, other than its
obligations in Article 2 and Sections 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06,
provided the following conditions have been satisfied:
(a) The Company has irrevocably deposited in trust
with the Trustee, as trust funds solely for the benefit of the
Holders, cash in U.S. dollars or U.S. Government Securities or
a combination thereof sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certificate thereof delivered to the
Trustee, without consideration of any reinvestment, to pay
principal of and interest on the Notes to maturity or
redemption, as the case may be, provided that any redemption
before maturity has been irrevocably provided for under
arrangements satisfactory to the Trustee.
(b) No Default has occurred and is continuing on the
date of the deposit.
(c) The deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound.
38
(d) The Company has delivered to the Trustee either
(A) a ruling received from the Internal Revenue Service to the
effect that the Holders will not recognize income, gain or
loss for federal income tax purposes as a result of the
defeasance and will be subject to federal income tax on the
same amount and in the same manner and at the same times as
would otherwise have been the case or (B) an Opinion of
Counsel, based on a change in law after the date of this
Indenture, to the same effect as the ruling described in
clause (A).
(e) If the Notes are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the deposit and defeasance will
not cause the Notes to be delisted.
(f) The Company has paid or caused to be paid all
other sums payable with respect to the Notes at the time
outstanding.
(g) The Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein
relating to the defeasance have been complied with.
Prior to the end of the 91-day period, none of the Company's
obligations under this Indenture will be discharged. Thereafter, the Trustee
upon request will acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture except for the surviving
obligations specified above.
Section 8.03. Covenant Defeasance.
The Company's obligations set forth in Sections 4.10 through
4.12, inclusive, will terminate, and clauses (c), (d) and (e) of Section 6.01
will no longer constitute Events of Default, provided the following conditions
have been satisfied:
(a) The Company has complied with clauses (a), (b),
(c), (e),(f) and (g) of Section 8.02; and
(b) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes
as a result of the defeasance and will be subject to federal
income tax on the same amount and in the same manner and at
the same times as would otherwise have been the case.
Except as specifically stated above, none of the Company's
obligations under this Indenture will be Discharged.
Section 8.04. Application of Trust Money.
Subject to Section 8.05, the Trustee will hold in trust the
money or U.S. Government Securities deposited with it pursuant to Section 8.01,
8.02 or 8.03, and apply the deposited money and the proceeds from deposited U.S.
Government Securities to the payment of principal of and interest on the Notes
in accordance with the Notes and this Indenture. Such
39
money and U.S. Government Securities need not be segregated from other funds
except to the extent required by law.
Section 8.05. Repayment to Company.
Subject to Sections 7.07, 8.01, 8.02 and 8.03, the Trustee
will promptly pay to the Company upon request any excess money held by the
Trustee at any time and thereupon be relieved from all liability with respect to
such money. The Trustee will pay to the Company upon request any money held for
payment with respect to the Notes that remains unclaimed for two years, provided
that before making such payment the Trustee may at the expense of the Company
publish once in a newspaper of general circulation in New York City, or send to
each Holder entitled to such money, notice that the money remains unclaimed and
that after a date specified in the notice (at least 30 days after the date of
the publication or notice) any remaining unclaimed balance of money will be
repaid to the Company. After payment to the Company, Holders entitled to such
money must look solely to the Company for payment, unless applicable law
designates another Person, and all liability of the Trustee with respect to such
money will cease.
Section 8.06. Reinstatement.
If and for so long as the Trustee is unable to apply any money
or U.S. Government Obligations held in trust pursuant to Section 8.01, 8.02 or
8.03 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Notes will be reinstated as though no such deposit in trust had been made.
If the Company makes any payment of principal of or interest on any Notes
because of the reinstatement of its obligations, it will be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held in trust.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Amendments Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Notes without notice to or the consent of any Noteholder
(a) to cure any ambiguity, defect or inconsistency in
this Indenture or the Notes;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission
in connection with the qualification of this Indenture under
the Trust Indenture Act;
(d) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee;
40
(e) to provide for uncertificated Notes in addition
to or in place of certificated Notes, provided that the
uncertificated Notes are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such
that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(f) to provide for any Guarantee of the Notes, to
secure the Notes or to confirm and evidence the release,
termination or discharge of any Guarantee of or Lien securing
the Notes when such release, termination or discharge is
permitted by this Indenture;
(g) to provide for or confirm the issuance of
Additional Notes; or
(h) to make any other change that does not materially
and adversely affect the rights of any Holder.
Section 9.02. Amendments With Consent of Holders. (a). Except
as otherwise provided in Sections 6.02, 6.04 and 6.07 or paragraph (b), the
Company and the Trustee may amend this Indenture and the Notes with the written
consent of at least the Holders of a majority in aggregate principal amount of
the outstanding Notes, and the Holders of at least a majority in principal
amount of the outstanding Notes by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Notes.
(b) Notwithstanding the provisions of paragraph (a), without
the consent of each Holder affected, an amendment or waiver may not
(i) change the Stated Maturity of the principal of,
or the Stated Maturity of any premium on, or any installment
of principal or interest on, any Note;
(ii) reduce the principal amount of, or the interest
or any premium on, any Note;
(iii) reduce the amount payable upon the redemption
of the Notes or change the time at which any Note may be
redeemed;
(iv) change the method or date of computing the
amount of principal of, or interest on, the Notes;
(v) change the place or currency of payment of
principal of, or interest on, the Notes;
(vi) impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity (or, in the case or redemption, on or after the date
of redemption);
(vii) reduce the percentage in principal amount of
the outstanding Notes of any series, the consent of whose
Holders is required for any waiver of
41
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences, provided
for in this Indenture; or
(viii) modify any of the provisions of this Section
9.02(b), Section 6.04 or Section 4.13, except to increase any
such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Note affected
thereby.
(c) It is not necessary for Noteholders to approve the
particular form of any proposed amendment, supplement or waiver, but is
sufficient if their consent approves the substance thereof.
(d) An amendment, supplement or waiver under this Section will
become effective on receipt by the Trustee of written consents from the Holders
of the requisite percentage in principal amount of the outstanding Notes. After
an amendment, supplement or waiver under this Section becomes effective, the
Company will send to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. The Company will send supplemental
indentures to Holders upon request. Any failure of the Company to send such
notice, or any defect therein, will not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.
Section 9.03. Effect of Consent. (a) After an amendment,
supplement or waiver becomes effective, it will bind every Holder unless it is
of the type requiring the consent of each Holder affected. If the amendment,
supplement or waiver is of the type requiring the consent of each Holder
affected, the amendment, supplement or waiver will bind each Holder that has
consented to it and every subsequent Holder of a Note that evidences the same
debt as the Note of the consenting Holder.
(b) If an amendment, supplement or waiver changes the terms of
a Note, the Trustee may require the Holder to deliver it to the Trustee so that
the Trustee may place an appropriate notation of the changed terms on the Note
and return it to the Holder, or exchange it for a new Note that reflects the
changed terms. The Trustee may also place an appropriate notation on any Note
thereafter authenticated. However, the effectiveness of the amendment,
supplement or waiver is not affected by any failure to annotate or exchange
Notes in this fashion.
42
Section 9.04. Trustee's Rights and Obligations. The Trustee
shall be provided with, and will be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture. Upon receipt of such an Opinion of Counsel, it shall sign the
amendment, supplement or waiver so long as the same does not adversely affect
the rights of the Trustee. The Trustee may, but is not obligated to, execute any
amendment, supplement or waiver that affects the Trustee's own rights, duties or
immunities under this Indenture.
Section 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 9.06. Payments for Consents. Neither the Company nor
any of its Subsidiaries or Affiliates may, 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 Notes unless such consideration
is offered to be paid or agreed to be paid to all Holders of the Notes that
consent, waive or agree to amend such term or provision within the time period
set forth in the solicitation documents relating to the consent, waiver or
amendment.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act.
Section 10.02. Noteholder Communications; Noteholder Actions.
(a) The rights of Holders to communicate with other Holders with respect to this
Indenture or the Notes are as provided by the Trust Indenture Act, and the
Company and the Trustee shall comply with the requirements of Trust Indenture
Act Sections 312(a) and 312(b). Neither the Company nor the Trustee will be held
accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
(b) (i) Any request, demand, authorization,
direction, notice, consent to amendment, supplement or waiver
or other action provided by this Indenture to be given or
taken by a Holder (an "act") may be evidenced by an instrument
signed by the Holder delivered to the Trustee. The fact and
date of the execution of the instrument, or the authority of
the person executing it, may be proved in any manner that the
Trustee deems sufficient.
(ii) The Trustee may make reasonable rules for action
by or at a meeting of Holders, which will be binding on all
the Holders.
(c) Any act by the Holder of any Note binds that
Holder and every subsequent Holder of a Note that evidences
the same debt as the Note of the
43
acting Holder, even if no notation thereof appears on the
Note. Subject to paragraph (d), a Holder may revoke an act as
to its Notes, but only if the Trustee receives the notice of
revocation before the date the amendment or waiver or other
consequence of the act becomes effective.
(d) The Company may, but is not obligated to, fix a
record date (which need not be within the time limits
otherwise prescribed by Trust Indenture Act Section 316(c))
for the purpose of determining the Holders entitled to act
with respect to any amendment or waiver or in any other
regard, except that during the continuance of an Event of
Default, only the Trustee may set a record date as to notices
of default, any declaration or acceleration or any other
remedies or other consequences of the Event of Default. If a
record date is fixed, those Persons that were Holders at such
record date and only those Persons will be entitled to act, or
to revoke any previous act, whether or not those Persons
continue to be Holders after the record date. No act will be
valid or effective for more than 90 days after the record
date.
Section 10.03. Notices. (a) Any notice or communication to the
Company will be deemed given if in writing (i) when delivered in person or (ii)
five days after mailing when mailed by first class mail, or (iii) when sent by
facsimile transmission, with transmission confirmed. Any notice to the Trustee
will be effective only upon receipt. In each case the notice or communication
should be addressed as follows: if to the Company:
Allegheny Technologies Incorporated
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Fax: ▇▇▇-▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) Except as otherwise expressly provided with
respect to published notices, any notice or communication to a
Holder will be deemed given when mailed to the Holder at its
address as it appears on the Register by first class mail or,
as to any Global Note registered in the name of DTC or its
nominee, as agreed by the Company, the Trustee and DTC. Copies
of any notice or communication to a Holder, if given by the
Company, will be mailed to the
44
Trustee at the same time. Defect in mailing a notice or
communication to any particular Holder will not affect its
sufficiency with respect to other Holders.
(c) Where this Indenture provides for notice, the
notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and the
waiver will be the equivalent of the notice. Waivers of notice
by Holders must be filed with the Trustee, but such filing is
not a condition precedent to the validity of any action taken
in reliance upon such waivers.
Section 10.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company will furnish to the Trustee:
(a) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(b) an Opinion of Counsel stating that all such
conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture must include:
(a) a statement that each person signing the
certificate or opinion has read the covenant or condition and
the related definitions;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statement or
opinion contained in the certificate or opinion is based;
(c) a statement that, in the opinion of each such
person, that person has made such examination or investigation
as is necessary to enable the person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion
of each such person, such condition or covenant has been
complied with, provided that an Opinion of Counsel may rely on
an Officers' Certificate or certificates of public officials
with respect to matters of fact.
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Section 10.06. Payment Date Other Than a Business Day. If any
payment with respect to a payment of any principal of, premium, if any, or
interest on any Note (including any payment to be made on any date fixed for
redemption or purchase of any Note) is due on a day which is not a Business Day,
then the payment need not be made on such date, but may be made on the next
Business Day with the same force and effect as if made on such date, and no
interest will accrue for the intervening period.
Section 10.07. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial. (a) This Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of law thereunder.
(b) The Company hereby irrevocably and unconditionally submits
to the jurisdiction of any New York State or United States Federal court sitting
in New York City over any suit, action or proceeding arising out of or relating
to this Indenture or any Note. The Company irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum. To
the extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process with respect to itself or
its property, the Company irrevocably waives, to the fullest extent permitted by
law, such immunity in respect of its obligations hereunder or under any Note.
The Company agrees that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the Company and, to
the fullest extent permitted by law, may be enforced in any court to the
jurisdiction of which the Company is subject by a suit upon such judgment or in
any manner provided by law.
(c) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.08. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company, and no such indenture
or loan or debt agreement may be used to interpret this Indenture.
46
Section 10.09. Successors. All agreements of the Company in
this Indenture and the Notes will bind its successors. All agreements of the
Trustee in this Indenture will bind its successor.
Section 10.10. Duplicate 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.
Section 10.11. Separability. In case any provision in this
Indenture or in the Notes is invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
Section 10.12. Table of Contents and Headings. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and in no way modify or restrict any of
the terms and provisions of this Indenture.
Section 10.13. No Liability of Directors, Officers, Employees,
Incorporators and Stockholders. No director, officer, employee, incorporator,
member or stockholder of the Company, as such, will have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations. Each Holder of Notes
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
47
IN WITNESS WHEREOF, the parties hereto have caused the
Indenture to be duly executed as of the date first written above.
ALLEGHENY TECHNOLOGIES INCORPORATED
as Issuer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
THE BANK OF NEW YORK
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
48
Exhibit A
[FACE OF NOTE]
ALLEGHENY TECHNOLOGIES INCORPORATED
8.375% Note due 2011
[CUSIP][CINS]:
---------------------
No.: $
------------------------------ --------------------
ALLEGHENY TECHNOLOGIES INCORPORATED, a Delaware corporation
(the "Company", which term includes any successor under the Indenture
hereinafter referred to), for value received, promises to pay to CEDE & CO., or
its registered assigns, the principal sum of DOLLARS ($ ) [or such other amount
as indicated on the Schedule of Exchange of Notes attached hereto] on December
15, 2001.
[Initial](1) Interest Rate: 8.375% per annum.
Interest Payment Dates: June 15 and December 15,
commencing June 15, 2002.
Regular Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which will for all purposes have the same
effect as if set forth at this place.
-------------
(1) For Initial Notes and Initial Additional Notes only.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Date: December , 2001 ALLEGHENY TECHNOLOGIES INCORPORATED
By:
----------------------------------
Name:
-------------------------
Title:
-------------------------
(Form of Trustee's Certificate of Authentication)
This is one of the 8.375% Notes due 2011 described in the
Indenture referred to in this Note.
THE BANK OF NEW YORK, as Trustee
By:
----------------------------------
Authorized Signatory
A-2
[REVERSE SIDE OF NOTE]
ALLEGHENY TECHNOLOGIES INCORPORATED
8.375% Note due 2011
1. Principal and Interest.
The Company promises to pay the principal of this Note on
December 15, 2011.
The Company promises to pay interest on the principal amount
of this Note on each interest payment date, as set forth on the face of this
Note, at the rate of 8.375% per annum (subject to adjustment as provided below).
Interest will be payable semiannually (to the holders of
record of the Notes at the close of business on the June 1 or December 1
immediately preceding the interest payment date) on each interest payment date,
commencing June 15, 2002.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated December 18, 2001, between the Company and
the Initial Purchasers named therein (the "Registration Rights Agreement")
pursuant to which (1) if the Company fails to file an Exchange Offer
Registration Statement with the Securities and Exchange Commission (the
"Commission") on or prior to the 90th day after the Issue Date, (2) if the
Exchange Offer Registration Statement is not declared effective by the
Commission on or prior to the 150th day after the Issue Date, (3) if the
Exchange Offer is not consummated on or before the 180th day after the Issue
Date, (4) if obligated to file the Resale Registration Statement, the Company
fails to file the Resale Registration Statement with the Commission on or prior
to the 30th day after the filing obligation arises, (5) if obligated to file the
Resale Registration Statement, the Resale Registration Statement is not declared
effective on or prior to the 90th day after the obligation to file the Resale
Registration Statement arises, or (6) after the Exchange Offer Registration
Statement or the Resale Registration Statement, as the case may be, is declared
effective, that registration statement thereafter ceases to be effective or
usable (each such event referred to in clauses (1) through (6) above, a
"Registration Default"), then the Company will pay additional interest (in
addition to the interest otherwise due hereon) ("Additional Interest") to the
Holder during the first 90-day period immediately following the occurrence of
each such Registration Default in an amount equal to 0.25% per annum. The amount
of interest will increase by an additional 0.25% per annum for each subsequent
90-day period until such Registration Default is cured, up to a maximum amount
of additional interest of 1.00% per annum. Such Additional Interest will cease
accruing with respect to any Registration Default when such Registration Default
has been cured. The Company shall pay amounts due in respect of Additional
Interest on each Interest Payment Date (or, if the Company shall default in the
payment of interest on any Interest Payment Date, on the date such interest is
otherwise paid as provided in the Indenture).
Interest on this Note will accrue from the most recent date to
which interest has been paid on this Note [or the Note surrendered in exchange
for this Note](2) (or, if there is no existing default in the payment of
interest and if this Note is authenticated between a regular record date and the
next interest payment date, from such interest payment date) or, if no interest
A-3
has been paid, from [the Issue Date](3). Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
2. Indenture.
This is one of the Notes issued under an Indenture dated as of
December 18, 2001 (as amended from time to time, the "Indenture"), between the
Company and The Bank of New York, as Trustee. Capitalized terms used herein are
used as defined in the Indenture unless otherwise indicated. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act. The Notes are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act for
a statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture will control.
The Notes are general unsecured obligations of the Company.
The Indenture limits the original aggregate principal amount of the Notes to
$300,000,000, but Additional Notes may be issued pursuant to the Indenture, and
the originally issued Notes and all such Additional Notes vote together for all
purposes as a single class.
3. Redemption and Repurchase; Discharge Prior to Redemption or
Maturity.
This Note is subject to redemption by the Company at any time,
as further described in the Indenture. There is no sinking fund or mandatory
redemption applicable to this Note.
----------------
(2) Include only for Exchange Note.
(3) For Additional Notes, should be the date of their original issue.
A-4
If the Company deposits with the Trustee money or U.S.
Government Securities sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes to redemption or maturity,
the Company may in certain circumstances be discharged from the Indenture and
the Notes or may be discharged from certain of its obligations under certain
provisions of the Indenture.
4. Registered Form; Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 principal amount and any multiple of $1,000 in excess
thereof. A Holder may register the transfer or exchange of Notes in accordance
with the Indenture. The Trustee may require a Holder to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. Pursuant to the Indenture, there are certain
periods during which the Trustee will not be required to issue, register the
transfer of or exchange any Note or certain portions of a Note.
5. Defaults and Remedies.
If an Event of Default (other than a bankruptcy default), as
defined in the Indenture, occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Notes may declare all the Notes to be
due and payable. If a bankruptcy default with respect to the Company occurs and
is continuing, the Notes automatically become due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority in
principal amount of the Notes then outstanding may direct the Trustee in its
exercise of remedies.
6. Amendment and Waiver.
Subject to certain exceptions, the Indenture and the Notes may
be amended, or default may be waived, with the consent of the Holders of a
majority in principal amount of the outstanding Notes. Without notice to or the
consent of any Holder, the Company and the Trustee may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency if such amendment or supplement does not adversely affect the
interests of the Holders.
7. Authentication.
This Note is not valid until the Trustee (or Authenticating
Agent) signs the certificate of authentication on the other side of this Note.
8. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors
Act).
A-5
The Company will furnish a copy of the Indenture to any Holder
upon written request and without charge.
A-6
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
--------------------------------------------------------------------------------
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
A-7
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL
CERTIFICATES BEARING A RESTRICTED LEGEND]
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of an effective Resale
Registration Statement or (ii) two years after the later of the original
issuance of this Note or the last date on which this Note was held by the
Company or an Affiliate of the Company, the undersigned confirms that such
transfer is made without utilizing any general solicitation or general
advertising and further as follows:
Check One
[ ]: (1) This Note is being transferred to a "qualified institutional buyer" in
compliance with Rule 144A under the Securities Act of 1933, as amended and
certification in the form of Exhibit E to the Indenture is being furnished
herewith.
[ ]: (2) This Note is being transferred to a Non-U.S. Person in compliance with
the exemption from registration under the Securities Act of 1933, as amended,
provided by Regulation S thereunder, and certification in the form of Exhibit D
to the Indenture is being furnished herewith.
or
[ ]: (3) This Note is being transferred other than in accordance with (1) or (2)
above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee is not
obligated to register this Note in the name of any Person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in the Indenture have been satisfied.
Date:____________________
------------------------------------
Seller
By:
------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
A-8
Signature Guarantee: (4)
------------------------------------
By:
------------------------------------------
To be executed by an executive officer
------------------
(4) Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Note Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-9
SCHEDULE OF EXCHANGES OF NOTES(5)
The following exchanges of a part of this Global Note for Physical Notes or a
part of another Global Note have been made:
Amount of Amount of Principal amount of
decrease in increase in this Global Note Signature of
principal amount principal amount following such authorized
Date of Exchange of this Global Note of this Global Note decrease (or increase) officer of Trustee
---------------- ------------------- ------------------- ---------------------- ------------------
----------
(5) For Global Notes.
A-10
Exhibit B
RESTRICTED LEGEND
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS NOTIFIED THAT THE SELLER OF THIS NOTE
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) INSIDE THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF AVAILABLE) OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
Exhibit C
DTC LEGEND
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.
Exhibit D
Regulation S Certificate
-----------,----
THE BANK OF NEW YORK
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: ALLEGHENY TECHNOLOGIES INCORPORATED 8.375% Notes due
2011 (the "Notes") Issued under the Indenture (the
"Indenture") dated as of December 18, 2001 relating
to the Notes
Dear Sirs:
Terms are used in this Certificate as used in Regulation S ("Regulation
S") under the Securities Act of 1933, as amended (the "Securities Act"), except
as otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
[ ] A. This Certificate relates to our proposed transfer of $____
principal amount of Notes issued under the Indenture. We hereby
certify as follows:
1. The offer and sale of the Notes was not and will not
be made to a person in the United States (unless such
person is excluded from the definition of "U.S.
person" pursuant to Rule 902(k)(2)(vi) or the account
held by it for which it is acting is excluded from
the definition of "U.S. person" pursuant to Rule
902(k)(2)(i) under the circumstances described in
Rule 902(g)(3)) and such offer and sale was not and
will not be specifically targeted at an identifiable
group of U.S. citizens abroad.
2. The circumstances described in the parenthetical in
paragraph 1 above are applicable, either (a) at the
time the buy order was originated, the buyer was
outside the United States or we and any person acting
on our behalf reasonably believed that the buyer was
outside the United States or (b) the transaction was
executed in, on or through the facilities of a
designated offshore securities market, and
A-11
neither we nor any person acting on our behalf knows
that the transaction was pre-arranged with a buyer in
the United States.
3. Neither we, any of our affiliates, nor any person
acting on our or their behalf has made any directed
selling efforts in the United States with respect to
the Notes.
4. The proposed transfer of Notes is not part of a plan
or scheme to evade the registration requirements of
the Securities Act.
5. We are a dealer or a person receiving a selling
concession, fee or other remuneration in respect of
the Notes, and the proposed transfer takes place
during the Restricted Period (as defined in the
Indenture), or we are an officer or director of the
Company or an Initial Purchaser (as defined in the
Indenture), we certify that the proposed transfer is
being made in accordance with the provisions of Rule
904(b) of Regulation S.
[ ] B. This Certificate relates to our proposed exchange of
$____ principal amount of Notes issued under the Indenture for
an equal principal amount of Notes to be held by us. We hereby
certify as follows:
1. The time the offer and sale of the Notes was made to
us, either (i) we were not in the United States or
(ii) we were excluded from the definition of "U.S.
person" pursuant to Rule 902(k)(2)(vi) or the account
held by us for which we were acting was excluded from
the definition of "U.S. person" pursuant to Rule
902(k)(2)(i) under the circumstances described in
Rule 902(g)(3); and we were not a member of an
identifiable group of U.S. citizens abroad.
2. The circumstances described in paragraph 1(ii) above
are applicable, either (a) at the time our buy order
was originated, we were outside the United States or
(b) the transaction was executed in, on or through
the facilities of a designated offshore securities
market and we did not pre-arrange the transaction in
the United States.
3. The proposed exchange of Notes is not part of a plan
or scheme to evade the registration requirements of
the Securities Act.
D-2
You and the Company are entitled to rely upon this Certificate
and are irrevocably authorized to produce this Certificate or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF SELLER (FOR TRANSFERS) OR
OWNER (FOR EXCHANGES)]
By:
---------------------------------------
Name:
----------------------------
Title:
---------------------------
Address:
-------------------------
Date:
-----------------------------
D-3
Exhibit E
Rule 144A Certificate
--------, ----
THE BANK OF NEW YORK
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: ALLEGHENY TECHNOLOGIES INCORPORATED
8.375% Notes due 2011 (the "Notes") Issued
under the Indenture (the "Indenture") dated
as of December 18, 2001 relating to the
Notes
Ladies and Gentlemen:
TO BE COMPLETED BY PURCHASER IF (1) ABOVE IS CHECKED.
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $____ principal amount of
Notes issued under the Indenture.
[ ] B. Our proposed exchange of $____ principal amount of
Notes issued under the Indenture for an equal
principal amount of Notes to be held by us.
We and, if applicable, each account for which we are acting in
the aggregate owned and invested more than $100,000,000 in securities of issuers
that are not affiliated with us (or such accounts, if applicable), as of
_________, 200_, which is a date on or since close of our most recent fiscal
year. We and, if applicable, each account for which we are acting, are a
qualified institutional buyer within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"). If we are
acting on behalf of an account, we exercise sole investment discretion with
respect to such account. We are aware that the transfer of Notes to us, or such
exchange, as applicable, is being made in reliance upon the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to
the date of this Certificate we have received such information regarding the
Company as we have requested pursuant to Rule 144A(d)(4) or have determined not
to request such information.
You and the Company are entitled to rely upon this Certificate
and are irrevocably authorized to produce this Certificate or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER (FOR TRANSFERS)
OR OWNER (FOR EXCHANGES)]
By:
---------------------------------------
Name:
----------------------------
Title:
---------------------------
Address:
-------------------------
Date:
-----------------------
E-2
Exhibit F
[COMPLETE FORM I OR FORM II AS APPLICABLE.]
[FORM I]
Certificate of Beneficial Ownership
[To: THE BANK OF NEW YORK
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration] OR
[Euroclear Bank S.A./N.V., as operator of the Euroclear System] OR
[Clearstream Banking SA]
Re: ALLEGHENY TECHNOLOGIES INCORPORATED 8.375% Notes due
2011 (the "Notes") Issued under the Indenture (the
"Indenture") dated as of December 18, 2001 relating
to the Notes
Ladies and Gentlemen:
We are the beneficial owner of $____ principal amount of Notes
issued under the Indenture and represented by a Temporary Offshore Global Note
(as defined in the Indenture).
We hereby certify as follows:
[CHECK A OR B AS APPLICABLE.]
[ ] A. We are a non-U.S. person (within the meaning of
Regulation S under the Securities Act of 1933,
as amended).
[ ] B. We are a U.S. person (within the meaning of
Regulation S under the Securities Act of 1933, as
amended) that purchased the Notes in a transaction
that did not require registration under the
Securities Act of 1933, as amended.
You and the Company are entitled to rely upon this Certificate
and are irrevocably authorized to produce this Certificate or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF BENEFICIAL OWNER]
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
--------------------------------
Date:
-----------------------------
[FORM II]
Certificate of Beneficial Ownership
THE BANK OF NEW YORK
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: ALLEGHENY TECHNOLOGIES INCORPORATED
8.375% Notes due 2011 (the "Notes") Issued
under the Indenture (the "Indenture") dated
as of December 18, 2001 relating to the
Notes
Ladies and Gentlemen:
This is to certify that based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations ("Member Organizations") appearing in our records as persons being
entitled to a portion of the principal amount of Notes represented by a
Temporary Offshore Global Note issued under the above-referenced Indenture, that
as of the date hereof, $____ principal amount of Notes represented by the
Temporary Offshore Global Note being submitted herewith for exchange is
beneficially owned by persons that are either (i) non-U.S. persons (within the
meaning of Regulation S under the Securities Act of 1933, as amended) or (ii)
U.S. persons that purchased the Notes in a transaction that did not require
registration under the Securities Act of 1933, as amended.
We further certify that (i) we are not submitting herewith for
exchange any portion of such Temporary Offshore Global Note excepted in such
Member Organization
F-2
certifications and (ii) as of the date hereof we have not received any
notification from any Member Organization to the effect that the statements made
by such Member Organization with respect to any portion of such Temporary
Offshore Global Note submitted herewith for exchange are no longer true and
cannot be relied upon as of the date hereof.
You and the Company are entitled to rely upon this Certificate
and are irrevocably authorized to produce this Certificate or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Yours faithfully,
EUROCLEAR BANK S.A./N.V., as operator of
the Euroclear System
or
CLEARSTREAM BANKING SA
By:
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Name:
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Title:
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Address:
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Date:
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F-3
Exhibit G
Institutional Accredited Investor Certificate
THE BANK OF NEW YORK
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Attention: Corporate Trust Administration
Re: ALLEGHENY TECHNOLOGIES INCORPORATED
8.375% Notes due 2011 (the "Notes") Issued
under the Indenture (the "Indenture") dated
as of December 18, 2001 relating to the
Notes
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $____ principal amount of
Notes issued under the Indenture.
[ ] B. Our proposed exchange of $____ principal amount of
Notes issued under the Indenture for an equal
principal amount of Notes to be held by us.
We hereby confirm that:
1. We are an institutional "accredited
investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the
"Securities Act") (an "Institutional
Accredited Investor").
2. Any acquisition of Notes by us will be for
our own account or for the account of one or
more other Institutional Accredited
Investors as to which we exercise sole
investment discretion.
3. We have such knowledge and experience in
financial and business matters that we are
capable of evaluating the merits and risks
of an investment in the Notes and we and any
accounts for which we are acting are able to
bear the economic risks of and an entire
loss of our or their investment in the
Notes.
4. We are not acquiring the Notes with a view
to any distribution thereof in a transaction
that would violate the Securities Act or the
securities laws of any State of the United
States or any other applicable jurisdiction;
provided that the disposition of our
property and the property of any accounts
for which we are acting as fiduciary will
remain at all times within our and their
control.
5. We acknowledge that the Notes have not been
registered under the Securities Act and that
the Notes may not be offered or sold within
the United States or to or for the benefit
of U.S. persons except as set forth below.
6. The principal amount of Notes to which this
Certificate relates is at least equal to
$250,000.
We agree for the benefit of the Company, on our own behalf and
on behalf of each account for which we are acting, that such Notes may be
offered, sold, pledged or otherwise transferred only in accordance with the
Securities Act and any applicable securities laws of any State of the United
States and only (a) to the Company, (b) pursuant to a registration statement
which has become effective under the Securities Act, (c) to a qualified
institutional buyer in compliance with Rule 144A under the Securities Act, (d)
in an offshore transaction in compliance with Rule 904 of Regulation S under the
Securities Act, (e) in a principal amount of not less than $250,000, to an
Institutional Accredited Investor that, prior to such transfer, delivers to the
Trustee a duly completed and signed certificate (the form of which may be
obtained from the Trustee) relating to the restrictions on transfer of the Notes
or (f) pursuant to an exemption from registration provided by Rule 144 under the
Securities Act or any other available exemption from the registration
requirements of the Securities Act.
Prior to the registration of any transfer in accordance with
(c) or (d) above, we acknowledge that a duly completed and signed certificate
(the form of which may be obtained from the Trustee) must be delivered to the
Trustee. Prior to the registration of any transfer in accordance with (e) or (f)
above, we acknowledge that the Company reserves the right to require the
delivery of such legal opinions, certifications or other evidence as may
reasonably be required in order to determine that the proposed transfer is being
made in compliance with the Securities Act and applicable state securities laws.
We acknowledge that no representation is made as to the availability of any Rule
144 exemption from the registration requirements of the Securities Act.
We understand that the Trustee will not be required to accept
for registration of transfer any Notes acquired by us, except upon presentation
of evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that the
Notes acquired by us will be in the form of definitive physical certificates and
that such certificates will bear a legend reflecting the substance of the
preceding paragraph. We further agree to provide to any person acquiring any of
the Notes from us a notice advising such person that resales of the Notes are
restricted as stated herein and that certificates representing the Notes will
bear a legend to that effect.
We agree to notify you promptly in writing if any of our
acknowledgments, representations or agreements herein ceases to be accurate and
complete.
G-2
We represent to you that we have full power to make the
foregoing acknowledgments, representations and agreements on our own behalf and
on behalf of any account for which we are acting.
You and the Company are entitled to rely upon this Certificate
and are irrevocably authorized to produce this Certificate or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER (FOR TRANSFER)
OR OWNER (FOR EXCHANGES)]
By:
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Name:
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Title:
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Address:
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Date:
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G-3
Upon transfer, the Notes would be registered in the name of
the new beneficial owner as follows:
By:
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Date:
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Taxpayer ID number:
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G-4
Exhibit H
THIS NOTE IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE RESTRICTED
PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY
PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON THAT PURCHASED SUCH
INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). BENEFICIAL INTERESTS HEREIN ARE NOT
EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE
WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN
REGULATION S UNDER THE SECURITIES ACT.
