As Filed with the Securities and Exchange Commission on December 8, 1998
REGISTRATION NO. _______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MACDERMID, INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
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CONNECTICUT 06-0435750
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
245 FREIGHT STREET
WATERBURY, CT 06702-0671
(203) 575-5700
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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Copies to:
DANIEL H. LEEVER MICHAEL E. MOONEY, ESQ.
Chairman of the Board and Chief Executive Officer Nutter, McClennen & Fish,
LLP
MacDermid, Incorporated One International Place
245 Freight Street Boston, MA 02110-2699
Waterbury, CT 06702 (617) 439-2000
(203) 575-5700
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, Of Agent for Service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: [_]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE AN AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a)
OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED<F1> SHARE PRICE<F1><F2>FEE<F7>
<S> <C> <C> <C> <C>
Debt Securities<F3>
Preferred Stock, No
par value per
share<F4> $300,000,000 <F2> $300,000,000 $84,300
Common Stock, No
par value per share,
<F5>
Warrants<F6>
<FN>
<F1> In no event will the aggregate maximum offering price of all
securities issued pursuant to this Registration Statement exceed
$300,000,000. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
<F2> The proposed maximum offering price per unit (a) has been omitted
pursuant to Instruction II.D. of Form S-3 and (b) will be determined,
from time to time, by the Registrant in connection with the issuance
by the Registrant of the securities registered hereunder.
<F3> Subject to footnote 1, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from
time to time, by the Registrant. There is also being registered
hereunder an indeterminate principal amount of Debt Securities as
shall be issuable upon exercise of Warrants registered hereby.
<F4> Subject to footnote 1, there is being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from
time to time, by the Registrant. There is also being registered
hereunder an indeterminate number of shares of Preferred Stock as
shall be issuable upon exercise of Warrants registered hereby.
<F5> Subject to footnote 1, there is being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from
time to time, by the Registrant, including shares of other classes or
series of the Company's stock that may be issued upon reclassification
of unissued, authorized stock of the Company. There is also being
registered hereunder an indeterminate number of shares of Common Stock
including shares of other classes or series of the Company's stock
that may be issued upon reclassification of unissued, authorized stock
of the Company, as shall be issuable upon conversion of the Preferred
Stock or Debt Securities or exercise of Warrants registered hereby.
<F6> Subject to footnote 1, there is being registered hereunder an
indeterminate number of Warrants representing rights to purchase
shares of Preferred Stock or Common Stock, including shares of other
classes or series of the Company's stock that may be issued upon
reclassification of unissued, authorized stock of the Company, as the
case may be, registered pursuant to this Registration Statement.
<F7> Calculated pursuant to Rule 457(o) of the rules and regulations (the
"Rules and Regulations") under the Securities Act of 1933, as amended.
</TABLE>
PROSPECTUSSUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS
DATED DECEMBER 8, 1998
MACDERMID, INCORPORATED
$300,000,000
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK AND WARRANTS
The securities may be offered in one or more separate classes or series, in
amounts, at prices and on terms to be determined by market conditions at the
time of sale and to be set forth in a supplement or supplements to this
Prospectus. Any securities may be offered with other securities or
separately. Debt securities or preferred stock may be exchangeable for or
convertible into shares of common stock. The aggregate offering price of the
securities will not exceed $300,000,000.
This Prospectus provides a general description of the securities being
registered. MacDermid, Incorporated (the "Company") will provide supplements
to this Prospectus (each a "Prospectus Supplement") which will contain more
specific information as to the defining characteristics of the securities
and, as applicable, the Company will provide information on United States
federal income tax considerations relating to the securities. More
information on the Company may be obtained from the sources described herein
(see "Information Available to You").
The securities may be sold on a negotiated or competitive bid basis to or
through underwriters or dealers designated from time to time or to other
purchasers directly or through agents designated from time to time (see "Plan
of Distribution").
The Company's common stock is listed on the New York Stock Exchange under the
symbol "MRD."
This Prospectus may not be used to consummate a sale of securities unless
accompanied by the applicable Prospectus Supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
MACDERMID MAY NOT SELL THESE SECURITIES UNTIL A REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
The date of this Prospectus is December 8, 1998.
TABLE OF CONTENTS
Information Available to You 3
Incorporation of Certain Documents by Reference 3
The Company 4
Ratio of Earnings to Fixed Charges 4
Use of Proceeds 4
Plan of Distribution 4
Description of Stock 5
Description of Debt Securities 6
Description of Warrants 8
Certain Provisions in the Charter and By-laws 10
Experts 10
Legal Matters 10
Indemnification Under the Securities Act of 1933 10
INFORMATION AVAILABLE TO YOU
The Company files annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). You can inspect and copy the Registration Statement on
Form S-3 (and the exhibits and schedules thereto) of which this Prospectus is
a part, as well as reports, proxy statements and other information filed by
the Company, at the public reference facilities maintained by the Commission
at Room 1024, 450 Fifth Street, N.W., Washington, D.C., 20549, and at the
following regional offices of the Commission: Seven World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be
obtained from the Public Reference Room of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. You can call the
Commission at 1-800-732-0330 for information regarding the operation of its
Public Reference Room. The Commission also maintains a World Wide Web site
at (http://www.sec.gov) that contains reports, proxy and other information
regarding registrants (like the Company) that file electronically. In
addition, the Company's common stock is listed on the New York Stock Exchange
and similar information concerning the Company can be inspected and copied at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows this Prospectus to "incorporate by reference"
certain other information that the Company files with The Commission, which
means that the Company can disclose important information to you by referring
to those documents. The information incorporated by reference is an
important part of this Prospectus, and information that the Company files
later with the Commission will automatically update and replace this
information. The Company incorporates by reference the documents listed
below and any future filings made by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of
1934 until the Company has sold all of the securities the Company has
registered.
a. Annual Report on Form 10-K for the fiscal year ended March 31, 1998;
b. Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998
and September 30, 1998;
c. Current Report on Form 8-K, dated January 15, 1998;
d. The Company's Proxy Statement relating to its Annual Meeting of
Stockholders held on July 22, 1998; and
e. The description of the Registrant's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 001-13889)
filed February 17, 1998 and any amendments or reports filed for the
purpose of updating such description.
Any statement contained herein or in a document incorporated by
reference herein will be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein (or in the
applicable Prospectus Supplement) or in any other subsequently filed document
which also is incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded should not be
considered, except as so modified or superseded, to constitute a part of this
Prospectus.
You should rely only on the information contained or incorporated by
reference in this Prospectus and any Prospectus Supplement. The Company has
not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should
not rely on it. You should not assume that the information in this
Prospectus or any supplement is accurate as of any date other than the date
on the front of those documents.
If you make a request for such information in writing or by telephone,
the Company will provide you, at no cost, a copy of any and all of the
information incorporated by reference in the Registration Statement of which
this Prospectus is a part. Requests should be directed to John L. Cordani,
Secretary, MacDermid, Incorporated, 245 Freight Street, Waterbury, CT 06702
(telephone no. (203) 575- 5700).
THE COMPANY
The Company, incorporated in Connecticut in 1922, develops, produces
and markets a broad line of specialty chemical products which are used in the
surface finishing, electronics and graphic arts industries. The Company also
markets chemical supplies and equipment produced by others. In 1995, the
Company acquired a business which manufactures and sells proprietary products
including photoresists, used to imprint electrical patterns on circuit
boards, and photopolymer printing, which reproduces quality graphics on
package printing and in-store displays. The Company is geographically
diversified with markets in North America, Europe, and Asia. The Company's
principal executive offices are located at 245 Freight Street, Waterbury,
Connecticut 06702, and its telephone number is (203) 575-5700.
<TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
The following table sets forth the Company's ratio of earnings to
fixed charges for the six-month periods ended September 30, 1998 and 1997 and
the five years ended March 31, 1998, 1997, 1996, 1995 and 1994:
SIX MONTHS SIX MONTHS YEARS ENDED MARCH 31
ENDED ENDED
SEPT 30, 1998 SEPT 30, 1998
(unaudited) (unaudited) 1998 1997 1996 1995 1994
============= ============== ====== ====== ====== ====== ======
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of
earnings to 6.91:1 7.94:1 7.53:1 6.76:1 6.05:1 7.66:1 7.72:1
fixed charges<F1>
<FN>
<F1> For purposes of calculating this ratio, fixed charges consist of
interest cost (interest expense plus capitalized interest), one-third
of estimated rent expense as representative of the interest portion of
rentals and amortization of debt expense, and earnings consist of
earnings (loss) before income taxes and discontinued operations and
before (i) interest expense; (ii) amortization of capitalized interest
in cost of sales; (iii) income from unconsolidated joint ventures;
(iv) depreciation and amortization; (v) amortization of excess of cost
over net assets acquired; (vi) one-third of estimated rent expense as
representative of the interest portion of rentals and amortization of
debt expense, and includes income distributions from unconsolidated
joint ventures.
</TABLE>
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the debt
securities, preferred stock, common stock and warrants registered hereunder
(the "Securities") for general corporate purposes, including, among other
things, the development and sale of new products, the acquisition of new
properties and the repayment of existing indebtedness.
PLAN OF DISTRIBUTION
The Securities may be sold (i) through agents; (ii) through
underwriters; (iii) through dealers; (iv) directly to purchasers (through a
specific bidding or auction process or otherwise); or (v) through a
combination of any such methods of sale. The distribution of Securities may
be effected from time to time in one or more transactions at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, at prices relating to such prevailing market prices or at negotiated
prices.
Offers to purchase the Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Securities will be named, and any commissions payable by
the Company to such agent will be set forth, in the Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, any such agent will
be acting on a best efforts basis for the period of its appointment. Any
such agent may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is
reached. The names of the specific managing underwriter or underwriters, as
well as any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, which may be in the form of
discounts, concessions or commissions, if any, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales
of the Securities.
If a dealer is utilized in the sale of the Securities, the Company or
an underwriter will sell such Securities to the dealer, as principal. The
dealer may then resell such Securities to the public at varying prices to be
determined by such dealer at the time of resale. The name of the dealer and
the terms of the transactions will be set forth in the Prospectus Supplement
relating thereto.
Offers to purchase the Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales, including
the terms of any bidding or auction process, if utilized, will be described
in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act,
or to contribution by the Company to payments they may be required to make in
respect thereof. The terms and conditions of such indemnification or
contribution will be described in the applicable Prospectus Supplement.
Certain of the agents, underwriters or dealers, or their affiliates, may be
customers of, engage in transactions with or perform services for, the
Company in the ordinary course of business.
DESCRIPTION OF STOCK
The summary of the terms of the stock of the Company set forth below
does not purport to be complete and is subject to and qualified in its
entirety by reference to the charter and bylaws of the Company and applicable
law. See "Information Available to You."
GENERAL
The Company has authorized 75,000,000 shares of common stock, no par
value (the "Common Stock"), and 2,000,000 shares of preferred stock, no par
value per share (the "Preferred Stock"). As of December 1, 1998, 25,136,349
shares of Common Stock were issued and outstanding and no shares of Preferred
Stock were issued and outstanding.
PREFERRED STOCK
The Board of Directors of the Company has the authority, without
further action by the Company's stockholders, to determine the principal
rights, preferences and privileges of the unissued Preferred Stock.
COMMON STOCK
Subject to the preferential rights of any series of Preferred Stock
that may be outstanding, all shares of Common Stock participate equally in
any dividends declared by the Board of Directors and in the net assets of the
Company on liquidation. Holders of shares of Common Stock are entitled to
one vote for each share held of record and have no conversion, exchange,
preemptive or cumulative voting rights. All outstanding shares of Common
Stock are fully paid and nonassessable.
The transfer agent and registrar for the Common Stock is the Harris Trust
Company of New York.
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of each
indenture under which the debt securities are to be issued (as amended or
supplemented from time to time, each an "Indenture"). The particular terms
of the debt securities being registered hereunder (the "Debt Securities")
will be set forth in a Prospectus Supplement relating to such Debt
Securities. The Debt Securities are to be issued under one or more
Indentures, to be entered into between the Company and a trustee chosen by
the Company and qualified to act under the Trust Indenture Act of 1939, as
amended (the "TIA") (together with any other trustee(s) chosen by the Company
and appointed in a supplemental indenture with respect to a particular
series, the "Trustee"). The form of Indenture has been filed as exhibits to
the Registration Statement of which this Prospectus is a part and will be
available for inspection at the corporate trust office of the Trustee, or as
described above under "Information Available to You." The Indentures are
subject to, and governed by, the TIA. The Company will execute an Indenture
if and when the Company issues any Debt Securities. The statements made
hereunder relating to the Indentures and the Debt Securities to be issued
thereunder are summaries of certain provisions thereof and do not purport to
be complete and are subject to, and are qualified in their entirety by
reference to, all provisions of the Indentures (including those terms made a
part of the Indenture by reference to the TIA) and such Debt Securities.
Capitalized terms used but not defined herein shall have the respective
meanings set forth in the Indentures. References below to an "Indenture" are
deemed to constitute a reference to the applicable Indenture under which a
particular series of Debt Securities is issued.
GENERAL
The Debt Securities will be unsecured obligations of the Company. The
Debt Securities may be issued in one or more series. Specific terms of each
series of Debt Securities will be contained in authorizing resolutions or a
supplemental indenture relating to that series. There will be Prospectus
Supplements relating to particular series of Debt Securities. Each
Prospectus Supplement will describe, as to the Debt Securities to which it
relates: (i) the title of the Debt Securities; (ii) any limit upon the
aggregate principal amount of a series of Debt Securities which may be
issued; (iii) the date or dates on which principal of the Debt Securities
will be payable and the amount of principal which will be payable; (iv) the
rate or rates (which may be fixed or variable) at which the Debt Securities
will bear interest, if any, as well as the dates from which interest will
accrue, the dates on which interest will be payable and the record date for
the interest payable on any payment date; (v) the currency or currencies in
which principal, premium, if any, and interest, if any, will be paid; (vi)
the place or places where principal, premium, if any, and interest, if any,
on the Debt Securities will be payable and where Debt Securities which are in
registered form can be presented for registration of transfer or exchange and
the identification of any depositary or depositaries for any global Debt
Securities; (vii) any provisions regarding the right of the Company to redeem
or purchase Debt Securities or of holders to require the Company to redeem
Debt Securities; (viii) the right, if any, of holders of the Debt Securities
to convert them into stock or other securities of the Company, including any
provisions intended to prevent dilution of the conversion rights or
otherwise; (ix) any provisions by which the Company will be required or
permitted to make payments to a sinking fund which will be used to redeem
Debt Securities or a purchase fund which will be used to purchase Debt
Securities; (x) the percentage of the principal amount at which Debt
Securities will be issued and, if other than the full principal amount
thereof, the percentage of the principal amount of the Debt Securities which
is payable if maturity of the Debt Securities is accelerated because of a
default; (xi) the terms, if any, upon which Debt Securities may be
subordinated to other indebtedness of the Company; (xii) any additions to,
modifications of or deletions from the terms of the Debt Securities with
respect to Events of Default or covenants or other provisions set forth in
the Indenture; and (xiii) any other material terms of the Debt Securities,
which may be different from the terms set forth in this Prospectus.
EVENTS OF DEFAULT AND REMEDIES
An Event of Default with respect to any series of Debt Securities is
defined in the Indenture as being default in payment of the principal of or
premium, if any, on any of the Debt Securities of such series; default for 30
days in payment of any installment of interest on any Debt Security of such
series; default by the Company for 60 days after notice in the observance or
performance of any other covenants in the Indenture relating to such series;
and certain events involving bankruptcy, insolvency or reorganization of the
Company. The Indenture provides that the Trustee may withhold notice to the
holders of any series of Debt Securities of any default (except a default in
payment of principal, premium, if any, or interest, if any, with respect to
such series of Debt Securities) if the Trustee considers it in the interest
of the holders of such series of Debt Securities to do so.
The Indenture provides that if any Event of Default has occurred and is
continuing with respect to any series of Debt Securities, the Trustee or the
holders of not less than a certain specified percentage in principal amount
of such series of Debt Securities then outstanding may declare the principal
of all the Debt Securities of such series to be due and payable immediately.
However, the holders of a majority in principal amount of the Debt Securities
of such series then outstanding by written notice to the Trustee and the
Company may waive any Default or Event of Default (other than any continuing
Default or Event of Default in payment of principal or interest) with respect
to such series of Debt Securities. Holders of a majority in principal amount
of the then outstanding Debt Securities of any series may rescind an
acceleration with respect to such series and its consequences (except an
acceleration due to nonpayment of principal or interest on such series) if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default with respect to such series have been cured or
waived.
The holders of a majority in principal amount of the Debt Securities of
any series then outstanding will have the right to direct the time, method
and place of conducting any proceedings for any remedy available to the
Trustee with respect to such series, subject to certain limitations specified
in the Indenture.
DEFEASANCE OF INDENTURE
The Indenture permits the Company to terminate all of its obligations
under the Indenture as they relate to any particular series of Debt
Securities, other than the obligation to pay interest, if any, on and the
principal of the Debt Securities of such series and certain other
obligations, at any time by (i) depositing in trust with the
Trustee, under an irrevocable trust agreement, money or U.S. government
obligations in an amount sufficient to pay principal of and interest, if any,
on the Debt Securities of such series to their maturity, and (ii) complying
with certain other conditions, including delivery to the Trustee of an
opinion of counsel or a ruling received from the Internal Revenue Service to
the effect that holders will not recognize income, gain or loss for federal
income tax purposes as a result of the Company's exercise of such right and
will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case otherwise.
In addition, the Indenture permits the Company to terminate all of its
obligations under the Indenture as they relate to any particular series of
Debt Securities (including the obligations to pay interest, if any, on and
the principal of the Debt Securities of such series and certain other
obligations) at any time by (i) depositing in trust with the Trustee, under
an irrevocable trust agreement, money or U.S. government obligations in an
amount sufficient to pay principal of and interest, if any, on the Debt
Securities of such series to their maturity, and (ii) complying with certain
other conditions, including delivery to the Trustee of an opinion of counsel
or a ruling received from the Internal Revenue Service to the effect that
holders will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of such right and will be
subject to federal income tax on the same amount and in the same manner and
at the same times as would have been the case otherwise, which opinion of
counsel is based upon a change in the applicable federal tax law since the
date of the Indenture.
TRANSFER AND EXCHANGE
A holder will be able to transfer or exchange Debt Securities only in
accordance with the provisions of the Indenture. The registrar may require a
holder, among other things, to furnish appropriate endorsements and transfer
documents, and to pay any taxes and fees required by law or permitted by the
Indenture.
AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Debt Securities may
be amended or supplemented with the consent (which may include consents
obtained in connection with a tender offer or exchange offer for Debt
Securities) of the holders of at least a majority in principal amount of the
Debt Securities of such series then outstanding, and any existing Default
under, or compliance with any provision of the Indenture relating to a
particular series of Debt Securities may be waived (other than any continuing
Default or Event of Default in the payment of interest on or the principal of
such Debt Securities) with the consent (which may include consents obtained
in connection with a tender offer or exchange offer for Debt Securities) of
the holders of a majority in principal amount of the Debt Securities of such
series then outstanding. Without the consent of any holder, the Company and
the Trustee may amend or supplement the Indenture or the Debt Securities to
cure any ambiguity, defect or inconsistency; to provide for uncertificated
Debt Securities in addition to or in place of certificated Debt Securities;
to make any change that does not adversely affect the legal rights of any
holder; or to create a series and establish its terms.
Without the consent of each holder affected, the Company and the Trustee
may not (i) reduce the amount of Debt Securities of such series whose holders
must consent to an amendment, supplement or waiver; (ii) reduce the rate of
or change the time for payment of interest; (iii) reduce the principal of or
change the fixed maturity of any Debt Security or alter the provisions with
respect to redemptions or mandatory offers to repurchase Debt Securities
pursuant to certain covenants set forth in the Indenture; (iv) make any Debt
Security payable in money other than that stated in the Debt Security; (v)
modify the ranking or priority of the Debt Securities; or (vi) waive a
continuing default in the payment of principal of or interest on the Debt
Securities.
The right of any holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such holder) may
be subject to the requirement that such holder shall have been the holder of
record of any Debt Securities with respect to which such consent is required
or sought as of a date identified by the Trustee in a notice furnished to
holders in accordance with the terms of the Indenture.
CONCERNING THE TRUSTEE
The Indenture provides that in case an Event of Default occurs and is
not cured, the Trustee will be required, in the exercise of its power, to use
the degree of care of a prudent person in similar circumstances in the
conduct of its own affairs. The Trustee may refuse to perform any duty or
exercise any right or power under the Indenture, unless it receives indemnity
satisfactory to it against any loss, liability or expense.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by the laws of
the State of Connecticut without giving effect to principles of conflict of
laws.
DESCRIPTION OF WARRANTS
The Company may issue warrants to purchase Debt Securities (the "Debt
Warrants"), Preferred Stock (the "Preferred Stock Warrants"), Common Stock
(the "Common Stock Warrants") or other securities issued by the Company or
another issuer (the "Other Warrants," collectively with the Debt Warrants,
the Preferred Stock Warrants and the Common Stock Warrants, the "Warrants").
Warrants may be issued independently or together with any Securities and may
be attached to or separate from such Securities. The Warrants are to be
issued under warrant agreements (each a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as warrant agent (the
"Warrant Agent"), all as shall be set forth in the Prospectus Supplement
relating to the Warrants being offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt
Warrants and the debt warrant certificates representing such Debt Warrants,
including the following: (i) the title of such Debt Warrants; (ii) the
aggregate number of such Debt Warrants; (iii) the price or prices at which
such Debt Warrants will be issued; (iv) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of such
Debt Warrants, and the procedures and conditions relating to the exercise of
such Debt Warrants; (v) the date, if any, on and after which such Debt
Warrants and the related Debt Securities will be separately transferable;
(vi) the principal amount of Debt Securities purchasable upon exercise of
each Debt Warrant, and the price at which such principal amount of Debt
Securities may be purchased upon such exercise; (vii) the date on which the
right to exercise such Debt Warrants shall commence, and the date on which
such right shall expire; (viii) the maximum or minimum number of such Debt
Warrants which may be exercised at any time; (ix) a discussion of material
federal income tax considerations, if any; and (x) any other terms of such
Debt Warrants and terms, procedures and limitations relating to the exercise
of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt Warrant
certificates of different denominations, and Debt Warrants may be exercised
at the corporate trust office of the Warrant Agent or any other office
indicated in the Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders
of the securities purchasable upon such exercise and will not be entitled to
payments of principal of (or premium, if any) or interest, if any, on the
securities purchasable upon such exercise.
PREFERRED STOCK WARRANTS, COMMON STOCK WARRANTS AND OTHER WARRANTS
The applicable Prospectus Supplement will describe the following terms
of Preferred Stock Warrants, Common Stock Warrants, and Other Warrants in
respect of which this Prospectus is being delivered: (i) the title of such
Warrants; (ii) the securities for which such Warrants are exercisable; (iii)
the price or prices at which such Warrants will be issued; (iv) if
applicable, the number of such Warrants issued with each share of Preferred
Stock, Common Stock or other securities of the Company or another issuer; (v)
any provisions for adjustment of the number or amount of shares of Preferred
Stock, Common Stock or other securities of the Company or another issuer
receivable upon exercise of such Warrants or the exercise price of such
Warrants; (vi) if applicable, the date on and after which such Warrants and
the related Preferred Stock, Common Stock or other securities of the Company
or another issuer will be separately transferable; (vii) if applicable, a
discussion of material federal income tax considerations; (viii) any other
terms of such Warrants, including terms, procedures and limitations relating
to the exchange and exercise of such Warrants; (ix) the date on which the
right to exercise such Warrants shall commence, and the date on which such
right shall expire; and (x) the maximum or minimum number of such Warrants
which may be exercised at any time.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase for cash
such principal amount of Debt Securities, shares of Preferred Stock or Common
Stock, or amounts of other securities at such exercise price as shall in each
case be set forth in, or be determinable as set forth in, the Prospectus
Supplement relating to the Warrants offered thereby. Warrants may be
exercised at any time up to the close of business on the expiration date set
forth in the Prospectus Supplement relating to the Warrants offered thereby.
After the close of business on the expiration date, unexercised Warrants will
become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, forward the
Debt Securities, shares of Preferred Stock or Common Stock or other
securities purchasable upon such exercise. If less than all of the Warrants
represented by such warrant certificate are exercised, a new warrant
certificate will be issued for the remaining Warrants.
CERTAIN PROVISIONS IN THE CHARTER AND BYLAWS
Business Transactions. The restated certificate of incorporation, as
amended, of the Company (the "Charter") requires, for the approval of any
merger or consolidation or other business reorganization or combination of
the Company (a "Business Transaction") with or into a person who is a
Significant Stockholder (as defined below), an affirmative vote of at least
eighty percent (80%) of the number of votes at the time entitled to be cast
by stockholders of the Company generally in the election of directors,
including at least sixty-six and two-thirds percent (66 2/3%) of the number
of votes at the time so entitled to be cast by stockholders of the Company
other than by a Significant Stockholder to or with whom the Business
Transaction is proposed to be effected. The voting requirements set forth
above do not apply to any Business Transaction with a Significant Stockholder
if such transaction is approved by a majority of the Board of Directors, but
only if a majority of the members of the Board of Directors acting on such
matter were Directors prior to the date on which such stockholder became a
Significant Stockholder. A "Significant Stockholder" means any person
owning beneficially, directly indirectly, shares of capital stock of the
Company entitled to cast fifteen percent (15%) or more of the votes entitled
to be cast generally in the election of directors by all of the outstanding
shares of all classes of capital stock, voting as one class.
Amendment of Charter and Bylaws. The provisions of the Charter set forth
above may not be amended without the approval of the holders of at least
eighty percent (80%) of the outstanding voting securities of the Company and
such affirmative vote must include sixty-six and two-thirds percent (66 2/3%)
of the outstanding voting securities not beneficially owned by a Significant
Stockholder; or the affirmative vote of sixty-six and two-thirds percent (66
2/3%) of the Board of Directors and the submission of the vote to the
stockholders for their consideration but only if the majority of the members
of the Board of Directors acting upon such matter shall be Continuing
Directors (as defined in the Charter).
The Bylaws of the Company (the "Bylaws") may be altered or amended at
any meeting of the directors, whether annual, regular, or special, by a
majority of the directors, provided that in the call of such meeting notice
of intention to amend the by-laws shall have been given, unless a proper
waiver has been signed by all of the directors dispensing with notices of any
meeting.
EXPERTS
The financial statements incorporated by reference in this registration
statement have been audited by KPMG Peat Marwick LLP, certified public
accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
giving said reports.
LEGAL MATTERS
Nutter, McClennen & Fish, LLP has rendered an opinion (filed as an
exhibit to the Registration Statement) with respect to the validity of the
Securities being offered hereby. If certain legal matters in connection with
offerings made by this Prospectus are passed on by counsel for the
underwriters of an offering of those Securities, that counsel will be named
in the Prospectus Supplement relating to that offering.
INDEMNIFICATION UNDER THE SECURITIES ACT OF 1933
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted against such director,
officer or controlling person in connection with the Securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES
IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses, other than underwriting discounts and commissions in
connection with the offering of the Securities being registered, are set
forth below. All of such expenses are estimates, except the Securities Act
Registration fee.
Securities Act Registration Fee $ 84,300.00
Printing Fees $ 8,000.00
Legal Fees and Expenses $ 15,000.00
Accounting Fees and Expenses $ 5,000.00
Miscellaneous Expenses $ 25,000.00
Total $137,300.00
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Connecticut Business Corporation Act, Sections 33-770 to 33-778,
inclusive, and Article 11 of MacDermid, Incorporated (the "Registrant")'s
by-laws, contain provisions authorizing indemnification by the Registrant of
directors, officers and employees of the Registrant against certain
liabilities and expenses which they may incur as directors, officers and
employees of the Registrant or of certain other corporations. Section 33-773
also provides that such indemnification may include payment by the Registrant
of expenses incurred in defending a proceeding in advance of the final
disposition of such proceeding, upon certain representations being made by
such indemnified person as to his or her good faith belief that he or she has
met the relevant standard of conduct and upon agreement by the person
indemnified to repay such payment if he or she shall be adjudicated not
entitled to be indemnified under Sections 33-772, 33-774 or 33-775.
Section 33-777 provides that the Registrant may purchase and maintain
insurance on behalf of an individual who is a director, officer, employee or
agent of the corporation, or who, while a director, officer, employee or
agent of the corporation, serves at the corporation's request as a director,
officer, employee or agent of another entity against liability asserted
against or incurred by such person in such capacity, whether or not the
corporation would have power to indemnify or advance expenses to him against
the same liability under Sections 33-770 to 33-778 inclusive. The Registrant
maintains an officer's and director's liability insurance policy.
ITEM 16. EXHIBITS
3.1 Certificate of Incorporation of the Registrant as amended
3.5 Bylaws of the Registrant
4.1(a) Form of Senior Debt Securities Indenture
4.1(b) Form of Senior Subordinated Debt Securities Indenture
4.1(c) Form of Subordinated Debt Securities Indenture
4.2+ Form of Note
4.3+ Form of Warrant
4.4+ Form of Warrant Agreement
4.5+ Form of Underwriting Agreement
5.1 Opinion of Nutter, McClennen & Fish, LLP
12.1 Statement of Computation of Ratios
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Nutter, McClennen & Fish, LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page of this Registration
Statement)
25.1+ Statement of Eligibility of Trustee on Form T-I
+To be filed by Current Report on Form 8-K to be incorporated herein by
reference or by post-effective amendment.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement; provided however, that subparagraphs (i)
and (ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in the periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned Registrant hereby further undertakes to file an
application for the purpose of determining the eligibility of the Trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in such
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the Securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in such Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Waterbury, State of
Connecticut, on the 8 day of December, 1998.
MACDERMID, INCORPORATED
By: /s/ Daniel H. Leever
--------------------------
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of MacDermid, Incorporated,
do hereby constitute and appoint Daniel H. Leever and John L. Cordani, and
each of them, our true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Daniel H. Leever President, Chief Executive November 30, 1998
Officer and Chairman of the Board
/s/ Gregory M. Bolingbroke Principal Financial and November 30, 1998
Accounting Officer and Controller
/s/ Harold Leever Director November 30, 1998
/s/ Donald G. Ogilvie Director November 30, 1998
/s/ James C. Smith Director November 30, 1998
/s/ Thomas W. Smith Director November 30, 1998
547208
RESTATED CERTIFICATE OF INCORPORATION
_____________________________________
We, the subscribers, certify that we do hereby associate ourselves as a
body politic and corporate under the statute laws of the State of
Connecticut; and we further certify:
FIRST. That the name of the Corporation is MACDERMID, INCORPORATED.
SECOND. That said Corporation is to be located in the Town of
Waterbury, in the State of Connecticut.
THIRD. That the nature of the business to be transacted, and the
purposes to be promoted or carried out, by said Corporation, are as follows:
To purchase, lease, or otherwise acquire real estate, improved or
unimproved, without limit as to amount, in any state or territory of the
United States or foreign country.
To acquire by purchase or otherwise, property, real or personal, and the
good will, right, and assets of all kinds under such terms and conditions as
may be deemed advisable, of any person, firm, or corporation, engaged in any
kind of business which is authorized to be done by corporations under the
general laws of the State of Connecticut, and to pay for the same in cash,
stock, common or preferred, bonds, or other securities of the corporation.
To authorize for, purchase, or otherwise acquire, and hold with the same
rights of ownership as may be permitted to natural persons, the shares, bonds
and obligations of any corporation organized under the laws of any state,
territory of the United States or of any foreign country.
To manufacture, buy, sell, export, import, and generally deal in all
kinds of chemicals, and to carry on the business of chemist, druggist, and
manufacturers of, and dealers in medicinal, chemical, and other preparations,
articles, compounds, pigments, drugs and druggists sundries, chemicals,
surgical and scientific apparatus and processes.
To analyze and refine when necessary all kinds of chemicals, medicines,
and preparations. to apply for, obtain, register, purchase, or otherwise
acquire, use, operate, sell, assign, or otherwise dispose of any and all
trade marks, secret processes, trade names, distinctive marks, and all
inventions, improvements, and processes used in connection with or secured
under letters patent, domestic or foreign, and other governmental grants or
concessions, and to use and employ the same in connection with the purchases
hereinbefore set forth.
To carry on the business of manufacturers and dealers in all kinds of
cleaning compounds and preparations, and compounds and preparations for
coloring, cleaning or treating all kinds of articles made of all kinds of
materials.
To engage in the business of selling goods, wares, and merchandise as
commission merchants, and as general selling agents; particularly to set as
agents or brokers for the selling upon commission or otherwise of all such
articles as are hereby authorized to be dealt in other respects as contained
in this certificate of incorporation.
To manufacture, buy, sell, export, import, and generally deal in
machinery of all kinds, classes, and descriptions. To purchase, lease, or
otherwise acquire lands and buildings for the erection and establishment, or
manufactories, and workshops with suitable plants, engines, and machinery,
and to generally engage in the manufacturing of all kinds of articles made of
metal, wood, leather, cloth or any other material.
To manufacture, buy, sell, import, export, and generally deal in paints
and painters' supplies of all kinds.
To manufacture, buy, sell, export, import, and generally deal in patent
medicines, formulas, and preparations of every kind, class, and description.
To manufacture, buy, sell, import, export, and generally deal in soaps
for toilet and domestic use. Also to purchase all materials suitable or
necessary for or to manufacture all materials suitable or necessary for the
proper manufacture of soaps and other cleaning preparations.
To manufacture, buy, sell, import, export, and generally deal in
chemical or other products or processes for the removal of varnish and
kindred products.
FOURTH. That the authorized capital stock of this Corporation shall
consist of Twenty-Two Million (22,000,000) shares, divided into Twenty
Million (20,000,000) shares of common stock, without par value, and Two
Million (2,000,000) shares of preferred stock, without par value. No
shareholder shall be entitled as of right to purchase such shares issued by
the Corporation or any securities convertible into such shares.
The terms, limitations and relative rights and preferences of the
preferred shares shall be fixed by resolution or resolutions adopted by the
Board of Directors at the time of the issuance and sale of any such preferred
shares or series thereof authorized pursuant hereto. The shares of preferred
stock may be divided into and from time to time issued in series. The Board
of Directors may determine variations in the terms, limitations and relative
rights and preferences of each such series to the extent permitted by then
applicable law.
FIFTH. That the amount of capital stock with which this Corporation
shall commence business is Four Thousand Five Hundred Dollars ($4,500.00).
SIXTH. That the duration of said Corporation is unlimited.
SEVENTH.
I. For purposes of this Article Seventh:
(a) The term "Subsidiary" shall mean any entity in which this
corporation beneficially owns or controls, directly or indirectly, more than
fifty percent (50%) of the outstanding voting stock.
(b) The term "Significant Stockholder" shall mean any corporation,
person or other entity ("person") owning beneficially, directly or
indirectly, shares of capital stock of this corporation entitled to cast
fifteen percent (15%) or more of the votes at the time entitled to be cast
generally in the election of directors by all of the outstanding shares of
all classes of capital stock of this corporation, considered for the purposes
of this Article Seventh as one class. For the purposes of this Article
Seventh, a person shall be deemed to be the beneficial owner of any shares of
capital stock of this corporation which are beneficially owned, directly or
indirectly, by any other person (i) with which he or his "affiliate" or
"associate" (as hereinafter defined) has any agreement, arrangement or
understanding for the purposes of acquiring, holding, voting or disposing of
capital stock of this corporation or (ii) which is his "affiliate" or
"associate". For the purposes of this Article Seventh, a person is an
"affiliate" of, or is affiliated with, a specified person if such person
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person specified; and the
term "associate" used to indicate a relationship with any person means (1)
any corporation or organization (other than this corporation or any
Subsidiary) of which such person is an officer or partner or is, directly or
indirectly, the beneficial owner of ten percent (10%) or more of any class of
equity securities, (2) any trust or other estate in which such person has a
substantial beneficial interest or as to which such person serves as trustee
or in a similar fiduciary capacity, and (3) any relative or spouse of such
person, or any relative of such spouse, who has the same home as such person
or who is a director or officer of this corporation or any of its parents or
Subsidiaries.
(c) The term "voting security" shall mean any security which is (or
upon the happening of any event, would be) entitled to vote for the election
of directors, and any security convertible, with or without consideration,
into such a security or carrying any warrant or right to subscribe or to
purchase such a security.
(d) The term "Continuing Director" shall mean a director who was a
member of the Board of Directors of this corporation immediately prior to the
time that a Significant Stockholder involved in a proposed Business
Transaction with a Significant Stockholder becomes a Significant Stockholder.
(e) The term "Business Transaction with a Significant Stockholder"
shall mean:
(i) any merger or consolidation of this corporation or of any
Subsidiary with or into a Significant Stockholder;
(ii) any sale, lease, exchange or other disposition by this
corporation or any Subsidiary of assets constituting all or substantially all
of the assets of this corporation and its Subsidiaries taken as a whole to or
with a Significant Stockholder, in a single transaction or a series of
related transactions;
(iii) any dissolution of this corporation or any distribution
by this corporation in complete or partial liquidation, in a single
transaction or a series of related transactions, at a time when this
corporation shall have a Significant Stockholder;
(iv) any issuance or transfer by this corporation or by any
Subsidiary of any voting securities of this corporation (except for voting
securities issued pursuant to a (1) stock option, stock purchase, stock bonus
or other plan for natural persons who are officers or employees of this
corporation or its Subsidiaries, or (2) conversion of convertible securities
acquired by a Significant Stockholder before the corporation, person or other
entity became a Significant Stockholder) to a Significant Stockholder in
exchange for cash, assets or securities or a combination thereof;
(v) any loan, advance, guarantee, pledge or other financial
assistance or tax credit or other benefits provided by this corporation or
any Subsidiary to a Significant Stockholder or benefitting, directly or
indirectly, a Significant Stockholder (except proportionately as a
stockholder) (loans or advances extended to natural persons who are officers
or employees of this corporation or any Subsidiary not being deemed included
in this section (v); or
(vi) any sale or lease, in a single transaction or a series of
related transactions, by a Significant Stockholder to this corporation or any
Subsidiary of any assets (except for aggregate consideration of less than one
million dollars ($1,000,000.00).
II. A Business Transaction with a Significant Stockholder shall
require the affirmative approval of at least eighty percent (80%) of the
number of votes at the time entitled to be cast by stockholders of this
corporation generally in the election of directors including at least
sixty-six and two-thirds percent (66-2/3%) of the number of votes at the time
so entitled to be cast by stockholders of this corporation other than by a
Significant Stockholder with whom the Business Transaction with a Significant
Stockholder is proposed to be effected. The voting requirements set forth in
the immediately preceding sentence shall not apply to any transaction with a
Significant Stockholder described in this Article Seventh if such Business
Transaction with a Significant Stockholder is approved by a majority of the
Board of Directors, but only if a majority of the members of the Board of
Directors acting on such matter shall be Continuing Directors. Such voting
requirements shall apply if there are no Continuing Directors. The
determination of whether a corporation, person or other entity is a
Significant Stockholder shall be made as of the date of the Business
Transaction with a Significant Stockholder, as of each date of such Business
Transaction in the event of any series of such related Business Transactions
or, as to a Business Transaction with a Significant Stockholder with respect
to which a vote of the stockholders of this corporation would otherwise be
required, as of the record date for the determination of stockholders
entitled to notice thereof and to vote thereon; and any corporation, person
or other entity shall be deemed a Significant Stockholder if on any such date
or at any time twelve (12) months prior thereto, he shall have owned the
requisite number of shares of capital stock of this corporation otherwise
necessary to constitute him a Significant Stockholder.
This corporation shall not vote its stock in any Subsidiary in favor of
any Business Transaction with a Significant Stockholder without first having
obtained the affirmative approvals referred to in this Article Seventh.
Notwithstanding any provision of this Article Seventh to the contrary,
unless the Board of Directors includes Continuing Directors and a majority of
the Board of Directors including a majority of the Continuing Directors
determines otherwise, in the event of any dissolution of this corporation or
any distribution by this corporation in complete or partial liquidation, in a
single transaction or a series of related transactions, at a time when this
corporation shall have a Significant Stockholder, all assets of the
corporation then paid over or so distributed to stockholders of this
corporation shall be paid over or distributed in kind pro rata.
III. If a vote of the shareholders of this corporation is required to
approve: (a) a Business Transaction with a Significant Stockholder which has
been approved by a majority of the Board of Directors, but only if a majority
of the members of the Board acting on such matter shall be Continuing
Directors; (b) a merger or consolidation of this corporation with or into a
person other than a Significant Shareholder; or (c) a sale, lease, exchange
or other disposition by this corporation or any Subsidiary of assets
constituting all or substantially all of the assets of this corporation and
its Subsidiaries taken as a whole to or with a person other than a
Significant Stockholder, in a single transaction or a series of related
transactions; then, the vote that shall be required shall be the affirmative
approval of at least a majority of the number of votes entitled to be cast by
stockholders of this corporation generally in the election of directors.
IV. The affirmative vote or consent of the holders of not less than
eighty percent (80%) of the outstanding voting securities shall be required
to amend, alter, change or repeal, or to adopt any provisions inconsistent
with, this Article and such affirmative vote must include two-thirds of the
outstanding voting securities not beneficially owned by a Significant
Stockholder; provided, however, that this paragraph shall not apply to, and
such eighty percent (80%) vote (and such further two-thirds vote) shall not
be required for, any amendment, alteration, change, repeal or adoption of any
inconsistent provision declared advisable by the Board of Directors by the
affirmative vote of two-thirds of the Board of Directors and submitted to
stockholders for their consideration, but only if a majority of the members
of the Board of Directors acting upon such matter shall be Continuing
Directors.
This restated Certificate of Incorporation merely restates but does not
change the provisions of the original Certificate of Incorporation as
supplemented and amended to date, and there is no discrepancy between such
provisions and the provisions of this restated Certificate of Incorporation.
Date at Waterbury, Connecticut, this 20th day of November, 1984
/s/ Arthur J. LoVetere
President
/s/ Russell Burge
Secretary
Subscribed and sworn to by ARTHUR J. LoVETERE and RUSSELL BURGE who made
solemn oath to the truth of the same, before me.
/s/ Shirley A. Hansen
Notary Public
CERTIFICATE OF MERGER
OF
MACDERMID OHIO, INC.
WITH
MACDERMID, INCORPORATED
To the Secretary of State
State of Connecticut
Pursuant to the provisions of the Stock Corporation Act of the State of
Connecticut governing the merger of one or more foreign subsidiary
corporations with a domestic parent corporation, it is hereby certified that:
1. The names of the merging corporations are MacDermid Ohio, Inc.,
which is a business corporation organized under the laws of the State of
Delaware, which is to be the terminating corporation, and which is sometimes
hereinafter referred to as the "subsidiary corporation," and MacDermid,
Incorporated, which is a business corporation organized under the laws of the
State of Connecticut, which is to be the surviving corporation, and which is
sometimes hereinafter referred to as the "parent corporation".
2. The subsidiary corporation has only one class of outstanding
shares, all of which are owned by the parent corporation.
3. The Certificate of Incorporation of the parent corporation
contains no provisions for merging the subsidiary corporation with the parent
corporation in a manner otherwise than that prescribed by the provisions of
Section 33-370 of the Stock Corporation Act of the State of Connecticut.
4. The Plan of Merger does not effect any change in the Certificate
of Incorporation of the parent corporation.
5. Annexed hereto as Exhibit A and made a part hereof is the Plan of
Merger for merging the subsidiary corporation with the parent corporation as
approved by resolution of the Board of Directors of each of said merging
corporations.
6. A merger of a kind permitted by the provisions of Section 33-370
of the Stock Corporation Act of the State of Connecticut is permitted by the
laws of the jurisdiction of organization of the subsidiary corporation; and
the merger of the subsidiary corporation with the parent corporation is in
compliance with the said laws.
7. The Plan of Merger provides that the merger shall be effective in
the State of Connecticut on March 31, 1989.
Dated at Waterbury, Connecticut, on March 31, 1989.
MACDERMID OHIO, INC.
The undersigned officers of MacDermid Ohio, Inc. do hereby state under
the penalties of false statement that the statements pertaining to MacDermid
Ohio, Inc. contained in the foregoing Certificate of Merger are true.
/s/ Arthur J. LoVetere
President
/s/ Michael A. Pfaff
Secretary
Dated at Waterbury, CT, on March 31, 1989
MACDERMID, INCORPORATED
The undersigned officers of MacDermid, Incorporated do hereby state
under the penalties of false statement that the statements pertaining to
MacDermid, Incorporated contained in the foregoing Certificate of Merger are
true.
/s/ Arthur J. LoVetere
President
/s/
Secretary
EXHIBIT A
PLAN OF MERGER approved on March 31, 1989 by McDermid Ohio, Inc.
("Ohio"), a business corporation organized under the laws of the State of
Delaware, and by resolution adopted by its Board of Directors on said date,
and approved by MacDermid, Incorporated ("MacDermid"), a business corporation
organized under the laws of the State of Connecticut, and by resolution
adopted by its Board of Directors on said date.
1. Ohio shall be merged with and into MacDermid pursuant to the
provisions of the Delaware General Corporation Law and pursuant to the
provisions of the Stock Corporation Act of the State of Connecticut.
MacDermid, which owns all the outstanding shares of Ohio, shall be the
surviving corporation pursuant to the provisions of the Stock Corporation Act
of the State of Connecticut and is sometimes hereinafter referred to as the
"surviving parent corporation." The separate existence of Ohio, which is
sometimes hereinafter referred to as the "terminating subsidiary
corporation," shall cease upon the effective date of the merger in accordance
with the provisions of the Delaware General Corporation Law.
2. The Certificate of Incorporation of MacDermid in effect on the
effective date of the merger in the State of Connecticut shall be the
Certificate of Incorporation of said surviving parent corporation and shall
continue in full force and effect until amended and changed in the manner
prescribed by the provisions of the Stock Corporation Act of the State of
Connecticut.
3. The by-laws of MacDermid in effect on the effective date of the
merger in the State of Connecticut shall be the by-laws of said surviving
parent corporation and shall continue in full force and effect until changed,
altered, or amended as therein provided and in the manner prescribed by the
provisions of the Stock Corporation Act of the State of Connecticut.
4. The directors and officers in office of MacDermid on the
effective date of the merger in the State of Connecticut shall continue to be
the members of the Board of Directors and the offers of the surviving parent
corporation, all of whom shall hold their directorships and offices until the
election and qualification of their respective successors or until their
tenure is otherwise terminated in accordance with the by-laws of the
surviving parent corporation.
5. The issued shares of Ohio shall not be converted or exchanged in
any manner, but each said share shall be surrendered and extinguished. The
issued shares of MacDermid shall not be converted or exchanged in any manner,
but each said share which is issued as of the effective date of the merger
shall continue to represent one issued share of the surviving parent
corporation.
6. In the event that the merger of the terminating subsidiary
corporation with the surviving parent corporation shall have been fully
authorized in accordance with the provisions of the Stock Corporation Act of
the State of Connecticut, the terminating subsidiary corporation and the
surviving parent corporation hereby stipulate that they will cause to be
executed and filed and/or recorded any document or documents prescribed by
the laws of the State of Delaware and of the State of Connecticut, and that
they will cause to be performed all necessary acts therein and elsewhere to
effectuate the merger.
7. The Board of Directors and the proper officers of the terminating
subsidiary corporation and of the surviving parent corporation, respectively,
are hereby authorized, empowered, and directed to do any and all acts and
things, and to make, execute, deliver, file, and/or record any and all
instruments, papers, and documents which shall be or become necessary,
proper, or convenient to carry out or put into effect any of the provisions
of this Plan of Merger or of the merger herein provided for.
8. The effective date of the merger herein provided for shall,
insofar as the provisions of the Stock Corporation Act of the State of
Connecticut shall govern the same, shall be March 31, 1989.
9. Notwithstanding the approval herein of the Plan of Merger upon
behalf of the terminating subsidiary corporation and of the surviving parent
corporation, the merger may be abandoned at any time prior to the effective
date of the merger in the event that they so agree in writing.
CERTIFICATE OF AMENDMENT
STOCK CORPORATION
Office of the Secretary of the State
30 Trinity Street, P.O. Box 150470/Hartford, CT 06115-0470/new/1-97
Space for: FILING #0001793641 PG 01 OF 04 VOL B-00166
FILED 01/21/1998 02:34 PM PAGE 03073
SECRETARY OF THE STATE
CONNECTICUT SECRETARY OF THE STATE
1. NAME OF CORPORATION:
MacDermid, Incorporated
2. THE CERTIFICATE OF INCORPORATION IS (check A., B. or C.):
x A. AMENDED.
B. AMENDED AND RESTATED.
C. RESTATED.
3. TEXT OF EACH AMENDMENT/RESTATEMENT:
See Attachment "A"
(Please reference an 8 1/2 x 11 attachment if additional space is needed)
Certificate of Amendment
of
MACDERMID, INCORPORATED
Attachment A
1. That the Restated Certificate of Incorporation of the Company be
amended by striking out the number "20,000,000" in Section Fourth and
replacing such number with "75,000,000."
2. That the Restated Certificate of Incorporation be amended to provide
for the addition of the following provision:
"Any action required by law to be taken at an annual or special meeting of
the stockholders, or any action which may be taken at an annual or special
meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted; provided, however, that in no event
shall such minimum number of votes constitute less than a majority of such
shares."
CERTIFICATE OF MERGER
MERGING
MACDERMID IMAGING TECHNOLOGY, INC.
WITH AND INTO
MACDERMID, INCORPORATED
(Pursuant to Sections 33-818 of the
Connecticut business Corporation Act)
The undersigned corporation does hereby certify as follows:
1. The Plan of Merger by and between MacDermid Imaging Technology,
Inc. ("Imaging Technology"), and MacDermid, Incorporated ("MacDermid"), which
corporations are hereinafter sometimes referred to jointly as the
"Constituent Corporation," is as follows:
ARTICLE 1
RECITALS
Section 1.1. Organization of the Parties. Imaging Technology is a
Corporation duly organized and existing under the laws of the State of
Delaware. MacDermid is a corporation duly organized and existing under the
laws of the State of Connecticut.
Section 1.2 Imaging Technology's Capital Stock. Imaging Technology has
authorized capital stock consisting of 150,000 shares of common stock, $.01
par value, of which 100 shares are now issued and outstanding, and 150,000
shares of preferred stock, no par value, of which no shares are now issued
and outstanding. All issued and outstanding shares of capital stock of
Imaging Technology are owned by MacDermid.
Section 1.3. MacDermid's Capital Stock. MacDermid has authorized
capital stock consisting of 20,000,000 shares of common stock, no par value,
of which 8,365,302 share are now issued and outstanding and 2,000,000 shares
of preferred stock, no par value, of which no shares are now issued and
outstanding.
Section 1.4. Desire to Merge. Imaging Technology and MacDermid desire
to effect a statutory subsidiary-parent merger of Imaging Technology with and
into MacDermid in the manner herein set forth, and the Boards of Directors of
the Imaging Technology and MacDermid have duly adopted, by written consent,
resolutions approving this Plan of Merger (the "Plan").
In consideration of the premises, and the mutual covenants and
agreements herein contained, it is hereby agreed by and between the parties
hereto that Imaging Technology shall be merged with and into MacDermid in
accordance with the applicable provisions of the Connecticut Business
Corporation Act, as amended (the "CBCA") and the Delaware General Corporation
Law, as amended (the "DGCL"), and upon the following terms and conditions:
ARTICLE 2
PARTIES TO MERGER
Section 2.1. The Merging Corporation. The name of the corporation
which shall merge with and into MacDermid is MacDermid Imaging Technology,
Inc.
Section 2.2. The Surviving Corporation. The name of the corporation
with and into which Imaging Technology shall merge is MacDermid,
Incorporated.
ARTICLE 3
TERMS AND CONDITIONS OF MERGER
AND MODE OF CARRYING IT INTO EFFECT
Section 3.1. General. Upon the Effective Date of the Merger (as
hereinafter defined): (a) Imaging Technology shall merge with and into
MacDermid; (b) MacDermid shall continue as the corporation that survives the
merger (the "Surviving Corporation"); (c) the shares of capital stock of
MacDermid outstanding upon the Effective Date of the Merger shall be and
remain outstanding shares of the capital stock of the Surviving Corporation
in accordance with their terms; and (d) the separate corporate existence of
Imaging Technology shall cease.
Section 3.2. Effective Date of the Merger. The "Effective Date of the
Merger" with respect to the merger contemplated by this Agreement shall be as
of December 31, 1997.
Section 3.3. Private Property of Shareholders. The private property of
the shareholders of Imaging Technology and of MacDermid shall not be subject
to the payment of the corporate debts of either corporation to any extent
whatsoever.
ARTICLE 4
MANNER AND BASIS OF CONVERTING SHARES OF
CAPITAL STOCK OF THE MERGING CORPORATION
INTO SHARES OF THE SURVIVING CORPORATION
Upon the Effective Date of the Merger, all issued and outstanding shares
of capital stock of Imaging Technology shall automatically and by operation
of law be cancelled and all certificates evidencing ownership of such shares
shall be void and of no effect, and all issued and outstanding shares of
capital stock of MacDermid shall remain issued and outstanding and shall
constitute all of the issued and outstanding shares of the Surviving
Corporation.
ARTICLE 5
ARTICLES OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION
Upon the Effective Date of the Merger, the Certificate of Incorporation
of MacDermid shall be the Certificate of Incorporation of the Surviving
Corporation. Also upon the Effective Date of the Merger, the By-laws of
MacDermid shall be the by-laws of the Surviving Corporation.
ARTICLE 6
DIRECTORS AND OFFICERS
The directors and officers of MacDermid in office on the Effective Date
of the Merger shall be the directors and officers of the Surviving
Corporation, each to hold office until a successor shall have been elected
and shall have been qualified or until the earlier of resignation or removal.
ARTICLE 7
CORPORATE APPROVALS AND TERMINATION
Section 7.1. Corporate Approvals. Pursuant to Section 33-818 of the
CBCA and Section 253 of the DGCL, this Plan and related matters shall not be
submitted to the shareholders of MacDermid or Imaging Technology to vote or
consent with respect thereto.
Section 7.2. Termination. At any time prior to the Effective Date of
the Merger, this Plan may be terminated and abandoned by MacDermid by
appropriate resolution of its Board of Directors. In the event of such
termination and abandonment, this Plan shall become void and neither Imaging
Technology nor MacDermid or their respective shareholders, directors or
officers may be held liable in respect to such termination or abandonment.
ARTICLE 8
MISCELLANEOUS
Section 8.1. Further Assurances. If at any time MacDermid shall
consider or be advised that any further assignment, assurance or other action
is necessary or desirable to vest in MacDermid the title to any property or
right of Imaging Technology or otherwise to carry out the purposes of this
Plan, the proper officers and directors of Imaging Technology shall execute
and make all such proper assignments or assurances and take such other
actions. The proper officers and directors of MacDermid are hereby
authorized in the name of Imaging Technology, or otherwise, to take any and
all such action.
2. Pursuant to Section 33-818 of the Connecticut Business
Corporation Act and Section 253 of the Delaware General Corporation Law,
shareholder approval of the merger was not required.
3. This Certificate of Merger shall become effective as of December
31, 1997.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Merger as of the 22 day of December, 1997.
MACDERMID, INCORPORATED
By: /s/ John L. Cordani
Name: John L. Cordani
Title: Secretary
AMENDED AS OF FEBRUARY 12, 1997
MACDERMID, INCORPORATED
BY-LAWS
ARTICLE' I
Meetings of Shareholders
Section 1. All meetings of the shareholders may be held at such place
within or without the State of Connecticut as may from time to time be
designated by the Board of Directors and stated in the notice of the meeting.
Section 2. The annual meeting of the shareholders - the election of
directors and the transaction of such other business as shall properly come
before such meeting shall be held on the Monday nearest the 17th day of July
in each year at the, hour designated in the notice of such meeting, provided
the directors by resolution adopted on or prior to the 1st day of June of any
year may designate another day during the month of July or August in such
year for such meeting.
Section 3. Special meetings of the shareholders may be called at any
time by the President or the Board of Directors, and the President shall call
a special meeting whenever he is requested in writing to do so by
shareholders representing one tenth of the outstanding stock having voting
power.
Section 4. A notice stating the time and place of each ,annual
meeting and the time, place- and purpose of each special meeting shall be
given at least ten days but not more than sixty days prior to the meeting to
each shareholder of record entitled to vote at such meeting by the Secretary
delivering or mailing such notice to each shareholder at such address as may
appear on the books of the Company. All shareholders by proper waiver may
dispense with notice of any meeting.
Section 5- At all meetings of the shareholders, the holders of a
majority of the shares entitled to vote, present in person or represented by
proxy, shall, except as otherwise provided by law, constitute a quorum, but a
lesser number may adjourn the meeting to a day and time specified.
Section 6. Except as otherwise provided by law, when a quorum is present
at any shareholders' meeting, the affirmative vote of a majority of the
voting power of the shares represented at such meeting shall be the act of
the shareholders.
Section 7. At all meetings of shareholders, each shareholder may
vote in person or by proxy and shall have one vote for each share standing in
his name on the books of the Company. At all elections of directors the
voting shall be by ballot. The Chairman presiding at each such meeting shall
have power to appoint two or more persons to act as inspectors or tellers, to
receive, canvass and report the votes cast by the shareholders at such
meeting; but no candidate for the office of director shall be appointed as
inspector or teller at any meeting for the election of directors.
ARTICLE II
Powers and Duties of Directors
Section 1. The business of the Company shall be managed by a Board of
Directors of not less than three nor more than fifteen directors, the number
of which shall be fixed from time to time by vote of the Board of Directors,
who shall be elected at the annual meeting of the shareholders and who shall
continue in office until the next annual meeting and until their successors
are elected and qualified.
Section 2. A majority of the members of the Board shall constitute a
quorum competent to transact business. A lesser number than a quorum may
adjourn from time to time until a quorum is present.
Section 3. The Board of Directors shall have power to fill vacancies
that may occur in the Board, or any other office, by death, resignation, or
otherwise, by a majority vote of the remaining members of the Board, and the
person so chosen shall hold the office until the next annual meeting and
until his successor shall be-elected and qualified.
Section 4. All questions shall be decided by vote of a majority of the
directors present. The yeas and nays on any question shall be taken and
recorded on the minutes at the request of any director.
Section 5. The Board of Directors shall at each annual meeting of the
shareholders report the results of the operations of the Company during the
preceding year and its financial condition at the close of each year.
Section 6. Any director may resign at any time by giving written notice
of his resignation to the President or to the Secretary of the Company. Such
resignation shall take effect on the date such notice is delivered or at any
later time specified therein.
Section 7. The Board of Directors may authorize any officer or officers,
agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Company, and such authority
may be general or confined to specific instances.
Section 8. The Board of Directors may from time to -time, by resolution
passed by a majority of the whole Board, appoint standing or temporary
committees, including an executive committee, from its own number, such
committees to have such powers as the Board may legally delegate to it. All
committees so appointed shall keep regular minutes of their meetings, shall
cause them to be recorded in books kept for that purpose in the: office of
the Company and shall report the same to the Board of Directors at its next
meeting.
Section 9. The directors shall receive such compensation for their
services as directors and as members of any committee appointed by the Board
as may be prescribed by the Board of Directors and shall be reimbursed by the
Company for ordinary and reasonable expenses incurred in the performance of
their duties.
ARTICLE III
Meetings of Directors
Section 1. The annual meeting of the Board of Directors shall, if a
quorum is present, be held without notice immediately after the adjournment
of the annual shareholders' meeting or as soon thereafter as convenient at
the place at which the annual meeting of shareholders has been made.
Section 2. Regular meetings of the Board of Directors may be held
without notice at such times and at such places, . within or without the
State of Connecticut, as the Board of Directors may from time to time
designate.
Section 3. Special meetings of the Board of Directors may be called by
the President,- or, in the event of his absence or inability to act, by any
other officer. In addition, any two directors may call such meetings. Such
meetings shall be held at the principal office of the Company or at such
other place or places, within or without the State of Connecticut, as the
Board of Directors may from time to time designate.
Section 4. Written or printed notice of all special meetings of the
Board of Directors shall be given to each director personally or by mail or
telegraph at least two days previous to the time of meeting, unless such
director shall in writing or by telegraph waive such notice or be in
attendance at such meeting.
Section 5. Subject to the provisions of the statutes and of Article VIII
hereof, any and all business may be transacted at any meeting unless
otherwise indicated in the notice of any special meeting.
Section 6. A director or a member of a committee of the Board of
Directors may participate in a meeting of the Board. or of such committee by
means of conference telephone or similar communications equipment enabling
all directors participating in the meeting to hear one another, and
participation in a meeting pursuant to this Section 6 and the
Connecticut Stock Corporation Act- shall constitute presence in person at
such meeting-
ARTICLE IV
Officers
Section 1. The officers of this Company shall consist of a Chairman of
the Board, if the Board of Directors so determine in any year; a President; a
Treasurer, a Secretary; and such other officers as the directors may
determine. Subject to their removal by the Board of Directors with or
without cause, the officers of the Company shall hold office until the next
annual meeting of the Board of Directors and until their successors are
elected and qualified.
Section 2. When elected, the Chairman of the Board shall have such
powers and perform such duties as may be delegated to him by the Board of
Directors.
Section 3. Subject to the delegation of powers and duties to the
Chairman of the Board, the President shall be the chief executive and
administrative officer of the Company and shall have general and active
control of its property and affairs and general supervision of its-officers.,
agents and employees. In the absence of a Chairman of the Board, he shall
preside at all meetings of the Board of Directors and of the shareholders.
Section 4. Such Vice Presidents as may be elected shall have such powers
and perform such duties as may be delegated to Them by the Board of
Directors. in the absence or disability of the President they, in the order
in which they are elected at the preceding annual meeting of the Board of
Directors or in such order as may be designated by the Board of Directors,
shall exercise the powers and perform the duties of the President.
Section 5. The Treasurer shall receive and keep the cash funds, notes,
and all other cash items belonging to the Company, and shall enter and cause
to be entered regularly in books kept for that purpose, an account of all
money received and disbursed on the Company's account and an account of all
other financial transactions of the Company. He shall also perform all other
acts and duties specially required of him by all applicable statutes, by
these by-laws and by the Board of Directors.
Section 6. When elected, the Assistant Treasurer, in the absence or
disability of the Treasurer, shall perform the duties and exercise the powers
of the Treasurer, and shall perform such other duties as shall be from time
to time required of him by the- Board of Directors.
Section 7. The Secretary shall make and keep records of the acts, doings
and proceedings of all meetings of the shareholders and directors; he shall
transmit to the shareholders and directors the notices required by statute
and by these by-laws, and as directed by the President; and he shall perform
all other acts and duties specially required of him by all applicable
statutes, by these by-laws and by the Board of Directors
Section 8. When elected, the Assistant Secretary, in the absence or
disability of the Secretary, shall perform the duties and exercise the powers
of the Secretary, and shall perform such other duties as shall be from time
to time required of him by the Board of Directors.
Section 9. The Controller shall provide timely and appropriate financial
reports and analysis, thereon for the Shareholders, Board of Directors and
governmental and other regulatory agencies. He shall perform also other acts
and duties specially required of him by all applicable statutes, by these by-
laws, and by the Board of Directors.
Section 10. When elected, the Assistant Controller, in the absence or
disability of -the controller, shall perform such other duties and exercise
the powers of the Controller, and shall perform such other duties as shall be
from time to time required of him by the Board of Directors.
Section 11. Unless otherwise ordered by the Board of Directors, the
President or an officer thereunto duly authorized by the President shall have
full power and authority on behalf of the Company to attend and to vote at
any meeting of shareholders of any corporation in which this Company may hold
stock, and may exercise on behalf of this Company and all of the rights and
powers incident to the ownership of such stock at any such meeting, and shall
have power and authority to execute and deliver proxies and consents on
behalf of this Company in connection with the exercise by this Company of the
rights and powers incident to the ownership of such stock. The Board of
Directors, from time to time, may confer like powers upon any other person or
persons.
ARTICLE V
Checks, Notes, Etc._
All checks, notes, drafts and bills of exchange, issued by the Company
for Company purposes, shall be signed by such officers or employees as may
from time to time be designated by the Board of Directors.
ARTICLE VI
Stock Transfers
Stock transfer books shall be kept and no transfers of stock shall be
permitted except upon said books, either by the shareholder in person or by
power of attorney executed by him for that purpose. The Board of Directors
may from time to time designate one or more transfer agents and one or more
registrars to transfer and register shares of the stock of the Company.
ARTICLE VII
Corporate Seal
A seal, circular in form, with the words "MACDERMID, INCORPORATED,
Waterbury, Connecticut" on its circumference, and the word "SEAL" across its
face, shall be the corporate seal of the Company, which shall be kept in the
custody of the Secretary of the Company.
ARTICLE VIII
Amendment of By-Laws
These by-laws may be altered or amended at any meeting of the directors,
whether annual, regular, or special, by a majority of the directors, provided
that in the call of such meeting notice of intention to amend the by-laws
shall have been given, unless a proper waiver has been signed by all of the
directors dispensing with notices of any meeting.
ARTICLE IX
Indemnification
Section -1. As used in this Article IX, the terms "Director,"
"Expenses," "Liability," "Official capacity," "Party" and "Proceeding" shall
have the respective meanings ascribed to them in- Section 3.3-770 of-the
Connecticut Business Corporation Act ("CBCA") or successor provision.
Section 2. Subject to the provisions of Sections 3 and 4 of this
Article IX and Sections 33-771 (b) , (c) and (e) of the CBCA, the
Company shall indemnify an individual made a Party to a Proceeding because he
is or was a Director against Liability incurred in the Proceeding if: (a) he
conducted himself in good faith; and (b) he reasonably believed (i) in the
case of conduct in his official capacity with the Company, that his conduct
was in its best interests, and (ii) in all other cases, that his conduct was
at least not opposed to its best interests; and (c) in the case of any
criminal Proceeding, he had no reasonable cause to believe his conduct was
unlawful.
Section 3. The Company shall pay for or reimburse the reasonable
Expenses incurred by a Director who is a Party to a Proceeding in advance of
final disposition of the Proceeding if: (a) the Director furnishes the
Company a written affirmation of his good faith belief that he has met the
standard of conduct described in Section 2 of Article IX; (b) the
Director furnishes the Company a written undertaking, executed personally or
on his behalf, -to repay the advance if it is ultimately determined that he
did not meet the standard of conduct; and (c) a determination is made that
the facts. then known to those making the determination would not preclude
indemnification under Sections 33-770 to 33-778, inclusive, of the CBCA.
Section 4. Notwithstanding the foregoing, the Company shall not
indemnify a Director under Section 2 of Article IX unless authorized in
a specific case after a determination has been made that indemnification of
the Director is permissible in the circumstances because he has met the
standard of conduct set forth under said Section 2. The determination
shall be made (a) by the Board of Directors by a majority vote of a quorum
consisting of Directors not at the time parties to the Proceeding; (b) if a
quorum cannot be obtained under subsection (a) of this Section 4, by
majority vote of a committee duly designated by the Board of Directors, in
which designation Directors who are Parties may participate, consisting
solely of two or more Directors not at the time Parties to the Proceeding;
(c) by special legal counsel (i) selected by the Board of Directors or its
committee in the manner prescribed in subsection (a) or (b) of this
Section 4, or (ii) if a quorum of the Board of Directors cannot be obtained
under subsection (a) of this Section 4, and a committee cannot be
designated under subsection (b) of this Section 4, selected by a
majority vote of the full Board of Directors, in which selection Directors
who are Parties may participate; -or (d) by the shareholders, but shares
owned by or voted under the control of Directors who are at the time Parties
to the Proceeding may not be voted on the determination. Authorization of
indemnification and evaluation as to reasonableness of Expenses shall be made
in the same manner as -the determination that indemnification is permissible,
except that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to reasonableness of
Expenses shall be made by those entitled under subsection (c) of this
Section 4 to select counsel.
Section 5 The Company shall indemnify and advance Expenses to an officer
who is not a Director, and may indemnify and advance Expenses to an employee
or agent who is not a Director, to the same extent as to a Director under
Sections 2, 3 and 4 of this Article IX.
Section 6. Nothing set forth in this Article IX shall be deemed to limit
the power of the Company to indemnify any Director, officer, employee or
agent as permitted under the provisions of the CBCA.
EXHIBIT 4.1(a)
MACDERMID, INCORPORATED
SENIOR DEBT SECURITIES
INDENTURE
DATED AS OF _______________, 1998
_________________, TRUSTEE
TABLE OF CONTENTS
Page
ARTICLE ONE - DEFINITIONS AND INCORPORATION BY REFERENCE1
Section 1.01. Definitions1
Section 1.02. Other Definitions7
Section 1.03. Incorporation by Reference of Trust Indenture Act7
Section 1.04. Rules of Construction8
ARTICLE TWO - THE SECURITIES8
Section 2.01. Form and Dating8
Section 2.02. Execution and Authentication10
Section 2.03. Registrar and Paying Agent10
Section 2.04. Paying Agent to Hold Money in Trust11
Section 2.05. Securityholder Lists11
Section 2.06. Transfer and Exchange11
Section 2.07. Replacement Securities12
Section 2.08. Outstanding Securities12
Section 2.09. Temporary Securities13
Section 2.10. Cancellation13
Section 2.11. Defaulted Interest13
Section 2.12. Treasury Securities14
Section 2.13. CUSIP Numbers14
Section 2.14. Deposit of Moneys14
Section 2.15. Book-Entry Provisions for Global Security14
ARTICLE THREE - REDEMPTION15
Section 3.01. Notices to Trustee15
Section 3.02. Selection of Securities to be Redeemed16
Section 3.03. Notice of Redemption16
Section 3.04. Effect of Notice of Redemption17
Section 3.05. Deposit of Redemption Price17
Section 3.06. Securities Redeemed in Part17
ARTICLE FOUR - COVENANTS17
Section 4.01. Payment of Securities17
Section 4.02. Maintenance of Office or Agency18
Section 4.03. Compliance Certificate18
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
Maintenance of Properties18
ARTICLE FIVE - SUCCESSOR CORPORATION19
Section 5.01. When Company May Merge, etc.19
ARTICLE SIX - DEFAULTS AND REMEDIES20
Section 6.01. Events of Default20
Section 6.02. Acceleration22
Section 6.03. Other Remedies22
Section 6.04. Waiver of Existing Defaults23
Section 6.05. Control by Majority23
Section 6.06. Limitation on Suits23
Section 6.07. Rights of Holders to Receive Payment24
Section 6.08. Collection Suit by Trustee24
Section 6.09. Trustee May File Proofs of Claim24
Section 6.10. Priorities24
Section 6.11. Undertaking for Costs25
ARTICLE SEVEN - TRUSTEE25
Section 7.01. Duties of Trustee25
Section 7.02. Rights of Trustee26
Section 7.03. Individual Rights of Trustee27
Section 7.04. Trustee's Disclaimer27
Section 7.05. Notice of Defaults28
Section 7.06. Reports by Trustee to Holders28
Section 7.07. Compensation and Indemnity28
Section 7.08. Replacement of Trustee29
Section 7.09. Successor Trustee by Merger, etc.29
Section 7.10. Eligibility; Disqualification30
Section 7.11. Preferential Collection of Claims Against Company30
ARTICLE EIGHT - DISCHARGE OF INDENTURE30
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government
Obligations30
Section 8.02. Survival of the Company's Obligations33
Section 8.03. Application of Trust Money33
Section 8.04. Repayment to the Company33
Section 8.05. Reinstatement34
ARTICLE NINE - AMENDMENTS, SUPPLEMENTS AND WAIVERS34
Section 9.01. Without Consent of Holders34
Section 9.02. With Consent of Holders35
Section 9.03. Compliance with Trust Indenture Act36
Section 9.04. Revocation and Effect of Consents36
Section 9.05. Notation on or Exchange of Securities37
Section 9.06. Trustee to Sign Amendments, etc.37
ARTICLE TEN - MISCELLANEOUS37
Section 10.01. Trust Indenture Act Controls37
Section 10.02. Notices37
Section 10.03. Communications by Holders with Other Holders38
Section 10.04. Certificate and Opinion as to Conditions Precedent38
Section 10.05. Statements Required in Certificate or Opinion39
Section 10.06. Rules by Trustee and Agents39
Section 10.07. Legal Holidays39
Section 10.08. Governing Law39
Section 10.09. No Adverse Interpretation of Other Agreements40
Section 10.10. No Recourse Against Others40
Section 10.11. Successors and Assigns40
Section 10.12. Duplicate Originals40
Section 10.13. Severability40
CROSS-REFERENCE TABLE
This Cross-Reference Table is not a part of the Indenture.
TIA Indenture Section 310(a)(1)7.10
(a)(2)7.10
(a)(3) N.A.
(a)(4)
N.A. (b)7.08; 7.10; 10.02
310(a)7.10
(b)7.10
(c)N.A.
312(a)2.05
(b)10.03
(c)10.03
313(a)7.06
(b)(1) N.A.
(b)(2)7.06
(c)10.02
(d)7.06
314(a)4.02; 10.02
(b)N.A.
(c)(1)10.04
(c)(2)10.04
(c)(3)N.A.
(d)N.A.
(e)10.05
315(a)7.01(b)
(b)7.05; 10.02
(c)7.01(a)
(d)7.01(c)
(e)6.10
316(a)(last sentence)10.06
(a)(1)(A)6.05
(a)(1)(B)6.04
(a)(2)N.A.
(b)6.07
317(a)(1)6.08
(a)(2)6.09
(b)2.04
318(a)10.01
N.A. means Not Applicable.
NDENTURE dated as of ______, 1998, by and between MACDERMID,
INCORPORATED, a Connecticut corporation (the "Company"), and
(the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's debt securities
issued under this Indenture (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Affiliate" means, when used with reference to a specified person, any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Person specified.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notices and demands.
"Attributable Debt" means, with respect to any Capitalized Lease
Obligations, the capitalized amount thereof determined in accordance with
GAAP.
"Authorizing Resolution" means a resolution adopted by the Board of
Directors or by an Officer or committee of Officers pursuant to Board
delegation authorizing a Series of Securities.
"Bankruptcy Law" means title 11 of the United States Code, as amended, or
any similar federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of or in
such Person's capital stock or other equity interests, and options, rights or
warrants to purchase such capital stock or other equity interests, whether
now outstanding or issued after the applicable Issue Date, including, without
limitation, all Disqualified Stock and Preferred Stock.
"Capitalized Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligations will be the capitalized amount thereof determined
in accordance with GAAP.
"Change of Control Provisions" has the meaning set forth in the definition
of "Disqualified Stock" below.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the Indenture and thereafter means the successor.
"Currency Agreement" of any Person means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Subsidiaries against fluctuations in
currency values.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, on
or prior to the final maturity date of the Securities of the applicable
Series or (ii) is convertible into or exchangeable or exercisable for
(whether at the option of the issuer or the holder thereof) (a) debt
securities or (b) any Capital Stock referred to in (i) above, in each case,
at any time prior to the final maturity date of the Securities of the
applicable Series; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders
thereof (or the holders of any security into or for which such Capital Stock
is convertible, exchangeable or exercisable) the right to require the Company
to repurchase or redeem such Capital Stock upon the occurrence of a change in
control occurring prior to the final maturity date of the Securities of the
applicable Series shall not constitute Disqualified Stock if the change in
control provisions applicable to such Capital Stock are no more favorable to
such holders than any provisions described in the Authorizing Resolution or
supplemental indenture pertaining to the Securities of the applicable Series
("Change of Control Provisions") and such Capital Stock specifically provides
that the Company will not repurchase or redeem any such Capital Stock
pursuant to such provisions prior to the Company's repurchase of the
Securities of the applicable Series to the extent required pursuant to any
such Change of Control Provisions.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect on the date
of this Indenture.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (i) any liability
of such Person (a) for borrowed money or under any reimbursement obligation
relating to a letter of credit or other similar instruments (other than
standby letters of credit issued for the benefit of or surety, performance,
completion or payment bonds, earnest money notes or similar purpose
undertakings or indemnifications issued by, such Person in the ordinary
course of business), (b) evidenced by a bond, note, debenture or similar
instrument (including a purchase money obligation) given in connection with
the acquisition of any businesses, properties or assets of any kind or with
services incurred in connection with capital expenditures (other than any
obligation to pay a contingent purchase price which, as of the date of
incurrence thereof is not required to be recorded as a liability in
accordance with GAAP), or (c) in respect of Capitalized Lease Obligations (to
the extent of the Attributable Debt in respect thereof), (ii) any
Indebtedness of others that such Person has guaranteed to the extent of the
guarantee, (iii) to the extent not otherwise included, the obligations of
such Person under Currency Agreements or Interest Protection Agreements to
the extent recorded as liabilities not constituting Interest Incurred, net of
amounts recorded as assets in respect of such agreements, in accordance with
GAAP, and (iv) all Indebtedness of others secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
provided, that Indebtedness shall not include accounts payable, liabilities
to trade creditors of such Person or other accrued expenses arising in the
ordinary course of business. The amount of Indebtedness of any Person at any
date shall be (a) the outstanding balance at such date of all unconditional
obligations as described above, net of any unamortized discount to be
accounted for as Interest Expense, in accordance with GAAP, (b) the maximum
liability of such Person for any contingent obligations under clause (ii)
above at such date, net of, any unamortized discount to be accounted for as
Interest Expense in accordance with GAAP and (c) in the case of clause (iv)
above, the lesser of (1) the fair market value of any asset subject to a Lien
securing the Indebtedness of others on the date that the Lien attaches and
(2) the amount of the Indebtedness secured.
"Indenture" means this Indenture as amended or supplemented from time to
time, including pursuant to any Authorizing Resolution or supplemental
indenture pertaining to any Series.
"Interest Expense" of any Person for any period means, without duplication,
the aggregate amount of (i) interest which, in conformity with GAAP, would be
set opposite the caption "interest expense" or any like caption on an income
statement for such Person (including, without limitation, imputed interest
included in Capitalized Lease Obligations, all commissions, discounts and
other fees and charges owned with respect to letters of credit and bankers'
acceptance financing, the net costs (but reduced by net gains) associated
with Currency Agreements and Interest Protection Agreements, amortization of
other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all
other noncash interest expense other than interest and other charges
amortized to cost of sales), and (ii) all interest actually paid by the
Company or a Restricted Subsidiary under any guarantee of Indebtedness
(including, without limitation, a guarantee of principal, interest or any
combination thereof) of any Person other than the Company or any Restricted
Subsidiary during such period; provided, that Interest Expense shall exclude
any expense associated with the complete write-off of financing fees and
expenses in connection with the repayment of any Indebtedness.
"Interest Protection Agreement" of any Person means any interest rate swap
agreement, interest rate collar agreement, option or futures contract or
other similar agreement or arrangement designed to protect such Person or any
of its Subsidiaries against fluctuations in interest rates with respect to
Indebtedness permitted to be incurred under this Indenture.
"Investments" of any Person means (i) all investments by such Person in
any other Person in the form of loans, advances or capital contributions,
(ii) all guarantees of Indebtedness or other obligations of any other Person
by such person, (iii) all purchases (or other acquisitions for consideration)
by such Person of Indebtedness, Capital Stock or other securities of any
other Person and (iv) all other items that would be classified as investments
in any other Person (including, without limitation, purchases of assets
outside the ordinary course of business) on a balance sheet of such Person
prepared in accordance with GAAP.
"Issue Date" means, with respect to any Series of Securities, the date on
which the Securities of such Series are originally issued under this
Indenture.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this definition, a Person shall be deemed to own,
subject to a Lien, any Property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"Non-Recourse Indebtedness" with respect to any Person means Indebtedness of
such Person for which (i) the sole legal recourse for collection of principal
and interest on such Indebtedness is against the specific property identified
in the instruments evidencing or securing such Indebtedness and such property
was acquired with the proceeds of such Indebtedness or such Indebtedness was
incurred within 90 days after the acquisition of such property and (ii) no
other assets of such Person may be realized upon in collection of principal
or interest on such Indebtedness. Indebtedness which is otherwise Non-
Recourse Indebtedness will not lose its character as Non-Recourse
Indebtedness because there is recourse to the borrower, any guarantor or any
other Person for (i) environmental warranties and indemnities, or (ii)
indemnities for and liabilities arising from fraud, misrepresentation,
misapplication or non-payment of rents, profits, insurance and condemnation
proceeds and other sums actually received by the borrower from secured assets
to be paid to the lender, waste and mechanics' liens.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Controller or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, incorporated or unincorporated association, joint
stock company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Preferred Stock" of any Person means all Capital Stock of such Person
which has a preference in liquidation or with respect to the payment of
dividends.
"Principal" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person, whether or not included in
the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Restricted Subsidiary" means any Subsidiary of the Company which is not an
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission or any successor agency
performing the duties now assigned to it under the TIA.
"Securities" means any Securities that are issued under this Indenture.
"Series" means a series of Securities established under this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which would
constitute a "significant subsidiary" as defined in Rule 1.02 of Regulation
S-X under the Securities Act and the Exchange Act.
"Subsidiary" of any Person means any corporation or other entity of which a
majority of the Capital Stock having ordinary voting power to elect a
majority of the Board of Directors or other persons performing similar
functions is at the time directly or indirectly owned or controlled by such
Person.
"TIA" means the Trust Indenture Act of 1939, as in effect from time to
time.
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor
serving hereunder.
"Trust Officer" means the Chairman of the Board, the President, any Vice
President or any other officer or assistant officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
"U.S. government obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation
by the United States, which, in either case are not callable or redeemable at
the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
government obligations or a specific payment of interest on or principal of
any such U.S. government obligation held by such custodian for the account of
the holder of a depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. government obligation or the specific
payment of interest on or principal of the U.S. government obligation
evidenced by such depository receipt.
"Unrestricted Subsidiary" means any Subsidiary of the Company so designated
by a resolution adopted by the Board of Directors of the Company as provided
below; provided that (a) the holders of Indebtedness thereof do not have
direct or indirect recourse against the Company or any Restricted Subsidiary,
and neither the Company nor any Restricted Subsidiary otherwise has
liability, for any payment obligations in respect of such Indebtedness
(including any undertaking, agreement or instrument evidencing such
Indebtedness), except, (i) in each case, to the extent that the amount
thereof constitutes a "restricted payment" permitted to be made under any
provisions set forth limiting the making or paying of a "restricted payment"
under the Authorizing Resolution or supplemental indenture pertaining to an
applicable Series ("Restricted Payment Provisions"), (ii) in the case of Non-
Resource Indebtedness, to the extent such recourse or liability is for the
matters discussed in the last sentence of the definition of "Non-Recourse
Indebtedness," or (iii) to the extent such Indebtedness is a guarantee by
such Subsidiary of Indebtedness of the Company or a Restricted Subsidiary and
(b) no holder of any Indebtedness of such Subsidiary shall have a right to
declare a default on such Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity as a result of a default
on any Indebtedness of the Company or any Restricted Subsidiary. Subject to
the foregoing, the Board of Directors of the Company may designate any
Subsidiary to be an Unrestricted Subsidiary; provided, however, that (i) the
net amount (the "Designation Amount") then outstanding of all previous
Investments by the Company and the Restricted Subsidiaries in such Subsidiary
will be deemed to be a "restricted payment" pursuant to any Restricted
Payment Provisions at the time of such designation and will reduce the amount
available for other restricted payments under any Restricted Payment
Provisions, to the extent provided therein, (ii) the Company must be
permitted under any Restricted Payment Provisions to make the "restricted
payment" deemed to have been made pursuant to clause (i), and (iii) after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing. The Board of Directors of the Company may also
redesignate an Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that (i) the Indebtedness of such Unrestricted Subsidiary
as of the date of such redesignation could then be incurred under any
provisions set forth limiting the incurrence of Indebtedness under the
Authorizing Resolution or supplemental indenture pertaining to an applicable
Series ("Debt Limitation Provisions"), (ii) immediately after giving effect
to such redesignation and the incurrence of any such additional Indebtedness,
the Company and the Restricted Subsidiaries could incur $1.00 of additional
Indebtedness under any debt incurrence covenant ratio set forth in any Debt
Limitation Provisions and (iii) the Liens of such Unrestricted Subsidiary as
of the date of such redesignation could then be incurred in accordance with
any provisions set forth limiting the creation or existence of Liens under
the Authorizing Resolution or supplemental indenture pertaining to an
applicable Series ("Lien Limitation Provisions"). Any such designation or
redesignation by the Board of Directors of the Company will be evidenced to
the Trustee by the filing with the Trustee of a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation or redesignation and an Officers' Certificate certifying that
such designation or redesignation complied with the foregoing conditions and
setting forth the underlying calculations of such Officers' Certificate. The
designation of any Person as an Unrestricted Subsidiary shall be deemed to
include a designation of all Subsidiaries of such Person as Unrestricted
Subsidiaries; provided, however, that the ownership of the general
partnership interest (or a similar member's interest in a limited liability
company) by an Unrestricted Subsidiary shall not cause a Subsidiary of the
Company of which more than 95% of the equity interest is held by the Company
or one or more Restricted Subsidiaries to be deemed an Unrestricted
Subsidiary.
Section 1.02. Other Definitions.
Term Defined in Section
"Agent Members" 2.15
"Business Day" 10.07
"Custodian" 6.01
"Depository" 2.15
"Event of Default" 6.01
"Legal Holiday" 10.07
"Paying Agent" 2.03
"Registrar" 2.03
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture securities" means the Securities.
"Indenture Securityholder" means a Securityholder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the Trustee.
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities of a Series.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
THE SECURITIES
Section 2.01. Form and Dating.
The aggregate principal amount of Securities that may be issued under
this Indenture is unlimited. The Securities may be issued from time to time
in one or more Series. Each Series shall be created by an Authorizing
Resolution or a supplemental indenture that establishes the terms of the
Series, which may include the following:
(1) the title of the Series;
(2) the aggregate principal amount (or any limit on the aggregate
principal amount) of the Series and, if any Securities of a Series
are to be issued at a discount from their face amount, the method of
computing the accretion of such discount;
(3) the interest rate or method of calculation of the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Securities of the Series;
(6) the dates when, places where and manner in which principal and
interest are payable;
(7) the Registrar and Paying Agent;
(8) the terms of any mandatory (including any sinking fund requirements)
or optional redemption by the Company;
(9) the terms of any redemption at the option of Holders;
(10) the denominations in which Securities are issuable;
(11) whether Securities will be issued in registered or bearer form and
the terms of any such forms of Securities;
(12) whether any Securities will be represented by a global Security and
the terms of any such global Security;
(13) the currency or currencies (including any composite currency) in
which principal or interest or both may be paid;
(14) if payments of principal or interest may be made in a currency other
than that in which Securities are denominated, the manner for
determining such payments;
(15) provisions for electronic issuance of Securities or issuance of
Securities in uncertificated form;
(16) any Events of Default, covenants and/or defined terms in addition to
or in lieu of those set forth in this Indenture;
(17) whether and upon what terms Securities may be defeased if different
from the provisions set forth in this Indenture;
(18) the form of the Securities, which, unless the Authorizing Resolution
or supplemental indenture otherwise provides, shall be in the form
of Exhibit A;
(19) any terms that may be required by or advisable under applicable law;
(20) the percentage of the principal amount of the Securities which is
payable if the maturity of the Securities is accelerated in the case
of Securities issued at a discount from their face amount;
(21) whether any Securities will have guarantees; and
(22) any other terms in addition to or different from those contained in
this Indenture.
All Securities of one Series need not be issued at the same time and,
unless otherwise provided, a Series may be reopened for issuances of
additional Securities of such Series pursuant to an Authorizing Resolution,
an Officers' Certificate or in any indenture supplemental hereto.
The creation and issuance of a Series and the authentication and
delivery thereof are not subject to any conditions precedent.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue upon
receipt of an Officers' Certificate of the Company. Each Security shall be
dated the date of its authentication.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an
office or agency where Securities may be presented for payment ("Paying
Agent") and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent and the Trustee shall have the right to inspect the Securities register
at all reasonable times to obtain copies thereof, and the Trustee shall have
the right to rely upon such register as to the names and addresses of the
Holders and the principal amounts and certificate numbers thereof. If the
Company fails to maintain a Registrar or Paying Agent or fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of Securityholders
and the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities, and shall notify the Trustee of
any default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon doing so the Paying Agent
shall have no further liability for the money.
Section 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least 5 Business Days before each semiannual
interest payment date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders.
Section 2.06. Transfer and Exchange.
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the New York Uniform
Commercial Code are met. Where Securities are presented to the Registrar or
a co-Registrar with a request to exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall make the exchange
as requested if the same requirements are met. To permit transfers and
exchanges, the Trustee shall authenticate Securities at the Registrar's
request. The Registrar need not transfer or exchange any Security selected
for redemption, except the unredeemed part thereof if the Security is
redeemed in part, or transfer or exchange any Securities for a period of 15
days before a selection of Securities to be redeemed. Any exchange or
transfer shall be without charge, except that the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto except in the case of exchanges pursuant to 2.09,
3.06, or 9.05 not involving any transfer.
Any Holder of a global Security shall, by acceptance of such global
Security, agree that transfers of beneficial interests in such global
Security may be effected only through a book entry system maintained by the
Holder of such global Security (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a
book entry.
Section 2.07. Replacement Securities.
If the Holder of a Security claims that the Security has been lost,
destroyed, mutilated or wrongfully taken, the Company shall issue and, upon
written request of any Officer of the Company, the Trustee shall authenticate
a replacement Security, provided in the case of a lost, destroyed or
wrongfully taken Security, that the requirements of Section 8-405 of the New
York Uniform Commercial Code are met. If any such lost, destroyed, mutilated
or wrongfully taken Security shall have matured or shall be about to mature,
the Company may, instead of issuing a substitute Security therefor, pay such
Security without requiring (except in the case of a mutilated Security) the
surrender thereof. An indemnity bond must be sufficient in the judgment of
the Company and the Trustee to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Security is replaced,
including the acquisition of such Security by a bona fide purchaser. The
Company or the Trustee may charge for its expenses in replacing a Security.
Section 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it and those described in this
Section. A Security does not cease to be outstanding because the Company or
one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay Securities payable on that date, then on and after that
date such Securities cease to be outstanding and interest on them ceases to
accrue.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 2.09. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but
may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and, upon
surrender for cancellation of the temporary Security, the Company shall
execute and the Trustee shall authenticate definitive Securities in exchange
for temporary Securities. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.
Section 2.10. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange,
redemption or payment. The Trustee and no one else shall cancel and destroy,
or retain in accordance with its standard retention policy, all Securities
surrendered for registration or transfer, exchange, redemption, paying or
cancellation. Unless the Authorizing Resolution so provides, the Company may
not issue new Securities to replace Securities that it has previously paid or
delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest plus any interest payable on the defaulted
interest to the persons who are Securityholders on a subsequent special
record date. The Company shall fix such special record date and a payment
date which shall be reasonably satisfactory to the Trustee. At least 15 days
before such special record date, the Company shall mail to each
Securityholder a notice that states the record date, the payment date and the
amount of defaulted interest to be paid. On or before the date such notice
is mailed, the Company shall deposit with the Paying Agent money sufficient
to pay the amount of defaulted interest to be so paid. The Company may pay
defaulted interest in any other lawful manner if, after notice given by the
Company to the Trustee of the proposed payment, such manner of payment shall
be deemed practicable by the Trustee.
Section 2.12. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any direction, waiver, consent or
notice, Securities owned by the Company or any of its Affiliates shall be
considered as though they are not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee actually
knows are so owned shall be so considered.
Section 2.13. CUSIP Numbers.
The Company in issuing the Securities of any Series may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such Securities;
provided that no representation is hereby deemed to be made by the Trustee as
to the correctness or accuracy of any such CUSIP number printed in the notice
or on such Securities, and that reliance may be placed only on the other
identification numbers printed on such Securities. The Company shall
promptly notify the Trustee of any change in any CUSIP number.
Section 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each interest payment date and
maturity date with respect to each Series of Securities, the Company shall
have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments due on such interest payment date or
maturity date, as the case may be, in a timely manner which permits the
Paying Agent to remit payment to the Holders on such interest payment date or
maturity date, as the case may be.
Section 2.15. Book-Entry Provisions for Global Security.
(a) Any global Security of a Series initially shall (i) be registered
in the name of the depository who shall be identified in the Authorizing
Resolution or supplemental indenture relating to such Securities (the
"Depository") or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear any required legends.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any global Security held
on their behalf by the Depository, or the Trustee as its custodian, or under
the global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
the global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of any global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the global Security may be
transferred or exchanged for definitive Securities in accordance with the
rules and procedures of the Depository. In addition, definitive Securities
shall be transferred to all beneficial owners in exchange for their
beneficial interests in a global Security if (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for the
global Security and a successor depository is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depository to
issue definitive Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more definitive Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of the global Security in an amount equal to the principal
amount of the beneficial interest in the global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more definitive Securities of like tenor and amount.
(d) In connection with the transfer of an entire global Security to
beneficial owners pursuant to paragraph (b), the global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the global Security, an equal aggregate principal amount of
definitive Securities of authorized denominations.
(e) The Holder of any global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities of such Series.
ARTICLE THREE
REDEMPTION
Section 3.01. Notices to Trustee.
Securities of a Series that are redeemable prior to maturity shall be
redeemable in accordance with their terms and, unless the Authorizing
Resolution or supplemental indenture provides otherwise, in accordance with
this Article.
If the Company wants to redeem Securities pursuant to Paragraph 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Securities to be redeemed. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to
Holders. Any such cancelled notice shall be void and of no effect.
If the Company wants to credit any Securities previously redeemed,
retired or acquired against any redemption pursuant to Paragraph 6 of the
Securities, it shall notify the Trustee of the amount of the credit and it
shall deliver any Securities not previously delivered to the Trustee for
cancellation with such notice.
The Company shall give each notice provided for in this Section 3.01 at
least 30 days before the notice of any such redemption is to be mailed to
Holders (unless a shorter notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Securities to be Redeemed.
If fewer than all of the Securities of a Series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities outstanding not previously called for redemption and shall
promptly notify the Company of the serial numbers or other identifying
attributes of the Securities so selected. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than the minimum denomination for the Series. Securities and portions
of them it selects shall be in amounts equal to the minimum denomination for
the Series or an integral multiple thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to accrue
on and after the redemption date; and
(6) that the Securities are being redeemed pursuant to the mandatory
redemption or the optional redemption provisions, as applicable.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall deliver to the Trustee at least 15 days prior to the date
on which notice of redemption is to be mailed or such shorter period as may
be satisfactory to the Trustee, an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price as
set forth in the notice of redemption. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price, plus accrued interest
to the redemption date.
Section 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent immediately available funds sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for each Holder a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a Series on the
dates and in the manner provided in the Securities of the Series. An
installment of principal or interest shall be considered paid on the date it
is due if the Paying Agent holds on that date money designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue principal at the rate borne by
the Series; it shall pay interest on overdue installments of interest at the
same rate.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee.
Section 4.03. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether
or not the signers know of any Default by the Company in performing any of
its obligations under this Indenture. If they do know of such a Default, the
certificate shall describe the Default.
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
Maintenance of Properties.
The Company will:
(a) cause to be paid and discharged all lawful taxes, assessments and
governmental charges or levies imposed upon the Company and its Restricted
Subsidiaries or upon the income or profits of the Company and its Restricted
Subsidiaries or upon property or any part thereof belonging to the Company
and its Restricted Subsidiaries before the same shall be in default, as well
as all lawful claims for labor, materials and supplies which, if unpaid,
might become a lien or charge upon such property or any part thereof;
provided, however, that the Company shall not be required to cause to be paid
or discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the nonpayment thereof does not, in the judgment of the
Company, materially adversely affect the ability of the Company and the
Restricted Subsidiaries to pay all obligations under this Indenture when due;
and provided further that the Company shall not be required to cause to be
paid or discharged any such tax, assessment, charge, levy or claim if, in the
judgment of the Company, such payment shall not be advantageous to the
Company in the conduct of its business and if the failure so to pay or
discharge does not, in its judgment, materially adversely affect the ability
of the Company and the Restricted Subsidiaries to pay all obligations under
this Indenture when due;
(b) cause to be done all things necessary to preserve and keep in full
force and effect the corporate existence of the Company and each of its
Restricted Subsidiaries and to comply with all applicable laws; provided,
however, that nothing in this Subsection (b) shall prevent a consolidation or
merger of the Company or any Restricted Subsidiary not prohibited by the
provisions of Article Five or any other provision or the Authorizing
Resolution or supplemental indenture pertaining to a Series, and the Company
need not maintain the corporate existence of an immaterial Restricted
Subsidiary; and
(c) at all times keep, maintain and preserve all the property of the
Company and the Restricted Subsidiaries in good repair, working order and
condition (reasonable wear and tear excepted) and from time to time make all
needful and proper repairs, renewals, replacements, betterments and
improvements thereto, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided, however,
that nothing in this Subsection (c) shall prevent the Company from
discontinuing the operation and maintenance of any such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of its business and not disadvantageous in any material respect to the
ability of the Company and the Restricted Subsidiaries to pay all obligations
under this Indenture when due.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge with or into, any other
corporation, or transfer all or substantially all of its assets to, any
entity unless permitted by law and unless (1) the resulting, surviving or
transferee entity, which shall be a corporation organized and existing under
the laws of the United States or a State thereof, assumes by supplemental
indenture, in a form reasonably satisfactory to the Trustee, all of the
obligations of the Company under the Securities and this Indenture and (2)
immediately after giving effect to, and as a result of, such transaction, no
Default or Event of Default shall have occurred and be continuing.
Thereafter such successor corporation or corporations shall succeed to and be
substituted for the Company with the same effect as if it had been named
herein as the "Company" and all such obligations of the predecessor
corporation shall terminate.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
To the extent that an Authorizing Resolution or supplemental indenture
pertaining to any Series provides for different provisions relating to the
subject matter of this Article Five, the provisions in such Authorizing
Resolution or supplemental indenture shall govern for purposes of such
Series.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" on a Series occurs if, voluntarily or
involuntarily, whether by operation of law or otherwise, any of the following
occurs:
(1) the failure by the Company to pay interest on any Security of such
Series when the same becomes due and payable and the continuance of any such
failure for a period of 30 days;
(2) the failure by the Company to pay the principal or premium of any
Security of such Series when the same becomes due and payable at maturity,
upon acceleration or otherwise;
(3) the failure by the Company or any Restricted Subsidiary to comply
with any of its agreements or covenants in, or provisions of, the Securities
of such Series or this Indenture (as they relate thereto) and such failure
continues for the period and after the notice specified below (except in the
cast off a default with respect to any Change of Control Provisions or
Article Five (or any replacement provisions as contemplated by Article
Five), which will constitute Events of Default with notice but without
passage of time);
(4) the acceleration of any Indebtedness (other than Non-Recourse
Indebtedness) of the Company or any Restricted Subsidiary in an amount of
$____ million or more, individually or in the aggregate, and such
acceleration does not cease to exist, or such Indebtedness is not satisfied,
in either case within five days after such acceleration;
(5) the failure by the Company or any Restricted Subsidiary to make any
principal or interest payment in an amount of $____ million or more,
individually or in the aggregate, in respect of Indebtedness (other than Non-
Resource Indebtedness) of the Company or any Restricted Subsidiary within
five days of such principal or interest becoming due and payable (after
giving effect to any applicable grace period set forth in the documents
governing such Indebtedness);
(6) a final judgment or judgments in an amount of $____ million or
more, individually or in the aggregate, for the payment of money having been
entered by a court or courts of competent jurisdiction against the Company or
any of its Restricted Subsidiaries and such judgment or judgments is not
satisfied, stayed, annulled or rescinded within 60 days of being entered;
(7) the Company or any Restricted Subsidiary that is a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted Subsidiary
that is a Significant Subsidiary as debtor in an involuntary case,
(B) appoints a Custodian of the Company or any Restricted Subsidiary
that is a Significant Subsidiary or a Custodian for all or substantially all
of the property of the Company or any Restricted Subsidiary that is a
Significant Subsidiary, or
(C) orders the liquidation of the Company or any Restricted Subsidiary
that is a Significant Subsidiary, and the order or decree remains unstayed
and in effect for 60 days.
A Default as described in sub-clause (3) above will not be deemed an
Event of Default until the Trustee notifies the Company, or the Holders of at
least 25 percent in principal amount of the then outstanding Securities of
the applicable Series notify the Company and the Trustee, of the Default and
(except in the case of a default with respect to any Change of Control
Provisions or Article Five (or any replacement provisions as contemplated by
Article Five)) the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." If such a
Default is cured within such time period, it ceases.
The term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Company resulting from sub-clauses (7) or (8) above) shall have occurred
and be continuing under the Indenture, the Trustee by notice to the Company,
or the Holders of at least 25 percent in principal amount of the Securities
of the applicable Series then outstanding by notice to the Company and the
Trustee, may declare all Securities of such Series to be due and payable
immediately. Upon such declaration of acceleration, the amounts due and
payable on the Securities of such Series will be due and payable immediately.
If an Event of Default with respect to the Company specified in sub-clauses
(7) or (8) above occurs, all amounts due and payable on the Securities of
such Series will ipso facto become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee and the
Company or any Holder. The Holders of a majority in principal amount of the
Securities of such Series then outstanding by written notice to the Trustee
and the Company may waive any Default or Event of Default (other than any
continuing Default or Event of Default in payment of principal or interest)
with respect to such Series of Securities under the Indenture. Holders of a
majority in principal amount of the then outstanding Securities of such
Series may rescind an acceleration with respect to such Series and its
consequence (except an acceleration due to nonpayment of principal or
interest on the Securities of such Series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
No such rescission shall extend to or shall affect any subsequent Event
of Default, or shall impair any right or power consequent thereon.
Section 6.03. Other Remedies.
If an Event of Default on a Series occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Series or to enforce the
performance of any provision in the Securities or this Indenture applicable
to the Series.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Existing Defaults.
Subject to Section 9.02, the Holders of a majority in principal amount
of the outstanding Securities of a Series on behalf of all the Holders of the
Series by notice to the Trustee may waive an existing Default on such Series
and its consequences. When a Default is waived, it is cured and stops
continuing, and any Event of Default arising therefrom shall be deemed to
have been cured; but no such waiver shall 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 principal amount of the outstanding
Securities of a Series 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 it with respect to such Series. The Trustee,
however, may refuse to follow any direction (i) that conflicts with law or
this Indenture, (ii) that, subject to Section 7.01, the Trustee determines is
unduly prejudicial to the rights of other Securityholders or (iii) that would
involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Securityholder of a Series may not pursue any remedy with respect to
this Indenture or the Series unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default on the Series;
(2) the Holders of at least a majority in principal amount of the
outstanding Securities of the Series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) no written request inconsistent with such written request shall
have been given to the Trustee pursuant to this Section 6.06.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal and interest remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company,
its creditors or its property, and unless prohibited by applicable law or
regulation, may vote on behalf of the Holders in any election of a Custodian,
and shall be entitled and empowered to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute
the same and any Custodian in any such judicial proceeding is hereby
authorized by each Securityholder to make such payments to the Trustee.
Nothing herein shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder or to authorize the Trustee to vote in
respect of the claim of any Securityholder except as aforesaid for the
election of the Custodian.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders of the Series for amounts due and unpaid on
the Series for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Series
for principal and interest, respectively; and
Third: to the Company as its interests may appear.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
the due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than
10% in principal amount of the Series.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall, prior to the receipt of directions from the Holders of a
majority in principal amount of the Securities, exercise its rights and
powers 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specificallyset forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. The
Trustee, however, shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture but need
not confirm or investigate the accuracy of mathematical calculations or other
facts or matters stated therein.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 or any other direction of the Holders
permitted hereunder.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if there shall be reasonable grounds for believing
that the repayment of such funds or adequate indemnity against such liability
is not reasonably assured to it.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document, resolution, certificate, instrument,
report or direction 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, resolution, certificate, instrument, report or
direction.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both, which shall
conform to Sections 10.04 and 10.05 hereof and containing such other
statements as the Trustee reasonably deems necessary to perform its duties
hereunder. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officers' Certificate, Opinion of
Counsel or any other direction of the Company permitted hereunder.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, omitted
or suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(f) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(g) For all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Event of Default (other than under
Section 6.01(1) or 6.01(2)) unless a Trust Officer assigned to and working in
the Trustee's corporate trust office has actual knowledge thereof or unless
written notice of any Event of Default is received by the Trustee at its
address specified in Section 10.02 hereof and such notice references the
Securities generally, the Company or this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or its
affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee, however, must comply
with Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture, the Securities or of any prospectus used to sell the
Securities; it shall not be accountable for the Company's use of the proceeds
from the Securities; it shall not be accountable for any money paid to the
Company, or upon the Company's direction, if made under and in accordance
with any provision of this Indenture; it shall not be responsible for the use
or application of any money received by any Paying Agent other than the
Trustee; and it shall not be responsible for any statement of the Company in
this Indenture or in the Securities other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default on a Series occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Securityholder of the Series
notice of the Default (which shall specify any uncured Default known to it)
within 90 days after it occurs. Except in the case of a default in payment
of principal of or interest on a Series, the Trustee may withhold the notice
if and so long as the board of directors of the Trustee, the executive or any
trust committee of such directors and/or responsible officers of the Trustee
in good faith determine(s) that withholding the notice is in the interests of
Holders of the Series.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that complies with TIA (S)313(a) (but if no
event described in TIA (S)313(2) has occurred within the twelve months
preceding the reporting date no report need be transmitted). The Trustee
also shall comply with TIA (S)313(b).
A copy of each report at the time of its mailing to Securityholders
shall be delivered to the Company and filed by the Trustee with the SEC and
each national securities exchange on which the Securities are listed. The
Company agrees to notify the Trustee of each national securities exchange on
which the Securities are listed.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee or predecessor trustee from time to
time reasonable compensation for their respective services subject to any
written agreement between the Trustee and the Company. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel. The Company shall indemnify
the Trustee and each predecessor trustee, its officers, directors, employees
and agents and hold it harmless against any loss, liability or expense
incurred or made by or on behalf of it in connection with the administration
of this Indenture or the trust hereunder and its duties hereunder including
the costs and expenses of defending itself against or investigating any claim
in the premises. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
the Trustee's, or its officers', directors', employees' or agents' negligence
or bad faith.
To ensure the Company's payment obligations in this Section, the Trustee
shall have a claim prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal of or
interest on particular Securities. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section
6.01 or in connection with Article 6 hereof, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for
services in connection therewith are to constitute expenses of administration
under any bankruptcy law.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the removed Trustee in writing and may appoint a
successor trustee with the Company's consent. Such resignation or removal
shall not take effect until the appointment by the Securityholders or the
Company as hereinafter provided of a successor trustee and the acceptance of
such appointment by such successor trustee. The Company may remove the
Trustee and any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee for any or no reason, including if:
(1) the Trustee fails to comply with Section 7.10 after written
request by the Company or any bona fide Securityholder who has been a
Securityholder for at least six months;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor trustee. If a successor trustee does not take office within 45
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or any Holder may petition any court of competent jurisdiction
for the appointment of a successor trustee.
A successor trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee
to the successor trustee, the resignation or removal of the retiring Trustee
shall become effective, and the successor trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor trustee
shall mail notice of its succession to each Securityholder.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges with or into or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall
be the successor trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have a combined
capital and surplus of at least $10,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.
(a) The Company may, at its option and at any time, elect to have
either paragraph (b) or paragraph (c) below be applied to the outstanding
Securities of any Series upon compliance with the applicable conditions set
forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities of a Series on the date the applicable conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities of a
Series, which shall thereafter be deemed to be "outstanding" only for the
purposes of the Sections and matters under this Indenture referred to in (i)
and (ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned,
except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Securities of
a Series to receive solely from the trust fund described in paragraph (d)
below and as more fully set forth in such paragraph, payments in respect of
the principal of and interest on such Securities when such payments are due
and (ii) obligations listed in Section 8.02, subject to compliance with this
Section 8.01. The Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below
with respect to such Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and
discharged from the obligations under any covenant contained in Article Five
and any other covenant contained in the Authorizing Resolution or
supplemental indenture relating to such Series to the extent provided for
therein, on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Securities of such Series shall
thereafter be deemed to be not "outstanding" for the purpose of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For
this purpose, such Covenant Defeasance means that, with respect to the
outstanding Securities of a Series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01(3), but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities of the
applicable Series:
(1) The Company shall have irrevocably deposited in trust with the
Trustee, pursuant to an irrevocable trust and security agreement inform and
substance reasonably satisfactory to the Trustee, money in U.S. dollars or
U.S. government obligations or a combination thereof in such amounts and
maturing at such times as are sufficient, together with earnings thereon, in
the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of and interest on the outstanding
Securities of such Series to maturity or redemption; provided, however, that
the Trustee (or other qualifying trustee) shall have received an irrevocable
written order from the Company instructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such U.S. government
obligations to said payments with respect to the Securities of such Series to
maturity or redemption;
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) Such deposit will not result in a Default under this Indenture
or a breach or violation of, or constitute a default under, any other
material instrument or agreement to which the Company or any of any of their
Subsidiaries is a party or by which it or any of their property is bound;
(4) (i) In the event the Company elects paragraph (b) hereof, the
Company shall deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the Trustee, to the
effect that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the Issue Date
pertaining to such Series, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall state that, or (ii) in the event the Company elects
paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of
Counsel in the United States, in form and substance reasonably satisfactory
to the Trustee, to the effect that, in the case of clauses (i) and (ii),
Holders of the Securities of such Series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to federal income tax in
the same amounts and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers'
Certificate, stating that the deposit under clause (1) was not made by the
Company with the intent of preferring the Holders of the Securities of such
Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of
Counsel, reasonably satisfactory to the Trustee, to the effect that, (A) the
trust funds will not be subject to the rights of Holders of Indebtedness of
the Company other than the Securities of such Series and (B) assuming no
intervening bankruptcy of the Company between the date of deposit and the
91st day following the deposit and that no Holder of Securities of such
Series is an insider of the Company, after the 91st day following the
deposit, the trust funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting creditors' rights
generally; and
(7) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by this
Section 8.01 have been complied with.
In the event all or any portion of the Securities of a Series are to be
redeemed through such irrevocable trust, the Company must make arrangements
satisfactory to the Trustee, at the time of such deposit, for the giving of
the notice of such redemption or redemptions by the Trustee in the name and
at the expense of the Company.
(e) In addition to the Company's rights above under this Section
8.01, the Company may terminate all of its obligations under this Indenture
with respect to a Series (subject to Section 8.02), when:
(1) All Securities of such Series theretofore authenticated and
delivered (other than Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust) have been delivered to the Trustee for
cancellation or all such Securities not theretofore delivered to the Trustee
for cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for that purpose an amount of money sufficient to pay and discharge
the entire Indebtedness on the Securities not theretofore delivered to the
Trustee for cancellation, for principal of and interest;
(2) The Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) The Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Securities
at maturity or redemption, as the case may be; and
(4) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this Indenture
have been complied with.
Section 8.02. Survival of the Company's Obligations.
Notwithstanding the satisfaction and discharge of the Indenture under
Section 8.01, the Company's obligations in paragraph 9 of the Securities and
Sections 2.03 through 2.07, 4.01, 7.07, 7.08, 8.04 and 8.05, however, shall
survive until the Securities of an applicable Series are no longer
outstanding. Thereafter, the Company's obligations in paragraph 9 of the
Securities of such Series and Sections 7.07, 8.04 and 8.05 shall survive (as
they relate to such Series).
Section 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. government obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited
money and the money from U.S. government obligations in accordance with this
Indenture to the payment of principal of and interest on the Securities of
the defeased Series.
Section 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time. The Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once in a newspaper of general circulation in the City of New
York or mail to each such Holder notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Securityholders entitled to the money must look to the Company for
payment as general creditors unless applicable abandoned property law
designates another person and all liability of the Trustee or such Paying
Agent with respect to such money shall cease.
Section 8.05. Reinstatement.
If the Trustee is unable to apply any money or U.S. government
obligations in accordance with Section 8.01 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 Securities relating to the
Series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee is permitted to apply
all such money or U.S. government obligations in accordance with Section
8.01; provided, however, that (a) if the Company has made any payment of
interest on or principal of any Securities of the Series because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. government obligations held by the Trustee and (b) unless
otherwise required by any legal proceeding or any order or judgment of any
court or governmental authority, the Trustee shall return all such money or
U.S. government obligations to the Company promptly after receiving a written
request therefor at any time, if such reinstatement of the Company's
obligations has occurred and continues to be in effect.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of a Series without notice to or consent of any Securityholder
of such Series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide that specific provisions of this Indenture shall not
apply to a Series not previously issued;
(4) to create a Series and establish its terms;
(5) to provide for uncertificated Securities in addition to or in
place of certificated Securities; and
(6) to make any other change that does not adversely affect the
rights of Securityholders.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail notice of such amendment to the Securityholders.
Section 9.02. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of a Series without notice to any Securityholder of such
Series but with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each such Series affected
by the amendment. Each such Series shall vote as a separate class. The
Holders of a majority in principal amount of the outstanding Securities of
any Series may waive compliance by the Company with any provision of the
Securities of such Series or of this Indenture relating to such Series
without notice to any Securityholder. Without the consent of each
Securityholder of a Series affected, however, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security or alter the provisions (including related definitions) with respect
to redemption of Securities pursuant to Article Three hereof or with respect
to any obligations on the part of the Company to offer to purchase or to
redeem Securities of a Series pursuant to the Authorizing Resolution or
supplemental indenture pertaining to such Series;
(4) modify the ranking or priority of the Securities of any Series;
(5) make any change in Sections 6.04, 6.07 or this 9.02;
(6) waive a continuing Default or Event of Default in the payment
of the principal of or interest on any Security; or
(7) make any Security payable at a place or in money other than that
stated in the Security, or impair the right of any Securityholder to bring
suit as permitted by Section 6.07.
An amendment of a provision included solely for the benefit of one or
more Series does not affect the interests of Securityholders of any other
Series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplement, but it
shall be sufficient if such consent approves the substance thereof.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder shall bind
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. Subject to the
following paragraph, any such Holder or subsequent Holder, however, may
revoke the consent as to his Security or portion of a Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Securities of any Series entitled
to consent to any amendment, supplement or waiver, which record date shall be
at least 10 days prior to the first solicitation of such consent. If a
record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (7) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such
waiver shall not impair or affect the right of any Holder to receive payment
of principal of and interest on a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates without the consent of such
Holder.
Section 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Company may require the Holder of the Security to deliver it to the
Trustee, at which time the Trustee shall place an appropriate notation on the
Security about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
Subject to Section 7.02(b), the Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article if the amendment,
supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but
need not sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental indenture
is authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in
accordance with its terms.
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 10.02. Notices.
Any order, consent, notice or communication shall be sufficiently given
if in writing and delivered in person or mailed by first class mail, postage
prepaid, addressed as follows:
if to the Company:
MacDermid, Incorporated
245 Freight Street
Waterbury, Connecticut 06702
Attention: Daniel Leever, President
if to the Trustee:
_________________________
_________________________
_________________________
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail at his address as it appears on the registration
books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it
except that notice to the Trustee shall only be effective upon receipt
thereof by the Trustee.
If the Company mails notice or communications to the Securityholders, it
shall mail a copy to the Trustee at the same time.
Section 10.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
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 shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of such counsel, all
such conditions precedent and covenants, compliance with which constitutes a
condition precedent, if any, provided for in this Indenture relating to the
proposed action or inaction, have been complied with and that any such
Section does not conflict with the terms of the Indenture.
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 shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for
its functions.
Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions in Boston, Massachusetts and New York, New York
are not required to be open. If a payment date is a Legal Holiday at a place
of payment, payment may be made at that place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the intervening
period. A Business Day is any day other than a Legal Holiday.
Section 10.08. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities of each Series.
Section 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 10.10. No Recourse Against Others.
All liability described in paragraph 13 of the Securities of any
director, officer, employee or stockholder, as such, of the Company is waived
and released.
Section 10.11. Successors and Assigns.
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successors and assigns.
Section 10.12. 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 10.13. Severability.
In case any one or more of the provisions contained in this Indenture or
in the Securities of a Series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or
of such Securities.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, all as of the date first above written.
MACDERMID, INCORPORATED
By:
Name:
Title:
Dated: _____________, 1998
, as Trustee
By:
Name:
Title:
Dated: _____________, 1998
(SEAL)
548450
EXHIBIT A
No. CUSIP No.: _________________
[Title of Security]
MACDERMID, INCORPORATED, a Connecticut corporation promises to pay to or
registered assigns the principal sum of [Dollars]1 on
__________ [Title of Security]
Interest Payment Dates: __________ and __________
Record Dates: __________ and __________
Authenticated:
Dated:
MACDERMID, INCORPORATED
[Seal]
By:
Title:
By:
Title:
_________________, as Trustee, certifies that this is one of the
Securities referred to in the within mentioned Indenture.
By:
Authorized Signatory
1. Interest. MACDERMID, INCORPORATED (the "Company"), a Connecticut
corporation, promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay interest
semiannually on __________________ and ______________ of each year until the
principal is paid or made available for payment. Interest on the Securities
will accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid, from _______________, 19 ,
provided that, if there is no existing default in the payment of interest,
and if this Security is authenticated between a record date referred to on
the face hereof and the next succeeding interest payment date, interest shall
accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest, if any, which will be paid on such special
payment date to Holders of record on such special record date as may be fixed
by the Company) to the persons who are registered Holders of Securities at
the close of business on the [Insert record dates]. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar.
Initially, _________________________ (the "Trustee") will act as Paying
Agent and Registrar. The Company may change or appoint any Paying Agent,
Registrar or co-Registrar without notice. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture dated as of
______________, 1998 ("Indenture") between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture (including
those terms set forth in the Authorizing Resolution or supplemental indenture
pertaining to the Securities of the Series of which this Security is a part)
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939 ("TIA") as in effect on the date of the Indenture. The Securities
are subject to all such terms, and Securityholders are referred to the
Indenture and the Act for a statement of them.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the applicable Authorizing
Resolution or supplemental indenture. Requests may be made to: MacDermid,
Incorporated, 245 Freight Street, Waterbury, Connecticut 06702, Attention:
Daniel Leever, President.
5. Optional Redemption.(1)
The Company may redeem the Securities at any time on or after
______________, in whole or in part, at the following redemption prices
(expressed as a percentage of their principal amount) together with interest
accrued and unpaid to the date fixed for redemption:
If redeemed during the twelve-month period commencing on ____________ and
ending on __________ in each of the following years Percentage ________.
(1) If applicable.
[Insert provisions relating to redemption at option of Holders, if any]
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000
may be redeemed in part. On and after the redemption date interest ceases to
accrue on Securities or portions of them called for redemption, provided that
if the Company shall default in the payment of such Security at the
redemption price together with accrued interest, interest shall continue to
accrue at the rate borne by the Securities.
6. Mandatory Redemption.2
The Company shall redeem ____% of the aggregate principal amount of
Securities originally issued under the Indenture on each of , which
redemptions are calculated to retire % of the Securities originally issued
prior to maturity. Such redemptions shall be made at a redemption price equal
to 100% of the principal amount thereof, together with accrued interest to
the redemption date. The Company may reduce the principal amount of
Securities to be redeemed pursuant to this Paragraph 6 by the principal
amount of any Securities previously redeemed, retired or acquired, otherwise
than pursuant to this Paragraph 6, that the Company has delivered to the
Trustee for cancellation and not previously credited to the Company's
obligations under this Paragraph 6. Each such Security shall be received and
credited for such purpose by the Trustee at the redemption price and the
amount of such mandatory redemption payment shall be reduced accordingly.
7. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A Holder may transfer or exchange
Securities by presentation of such Securities to the Registrar or a Co-
Registrar with a request to register the transfer or to exchange them for an
equal principal amount of Securities of other denominations. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any
Security selected for redemption, except the unredeemed part thereof if the
Security is redeemed in part, or transfer or exchange any Securities for a
period of 15 days before a selection of Securities to be redeemed.
[Insert different or additional denominations and multiples.]
8. Persons Deemed Owners.
The registered Holder of this Security shall be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Company
at its request. After that, Holders entitled to the money must look to the
Company for payment unless an abandoned property law designates another
person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Securities of each Series
affected by the amendment and any past default or compliance with any
provision relating to any Series of the Securities may be waived in a
particular instance with the consent of the Holders of a majority in
principal amount of the outstanding Securities of such Series.3 Without the
consent of any Securityholder, the Company and the Trustee may amend or
supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities, to create a Series and establish its terms
or to make any other change, provided such action does not adversely affect
the rights of any Securityholder.
11. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor
corporation will be released from those obligations.
12. Trustee Dealings With Company.
________________________________, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its affiliates, and may otherwise
deal with the Company or its affiliates, as if it were not Trustee.
13. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
14. Discharge of Indenture.
The Indenture contains certain provisions pertaining to defeasance, which
provisions shall for all purposes have the same effect as if set forth
herein.
15. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
16. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder 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).
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to
__________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(Insert assignee's social security or tax ID number)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type assignee's name, address, and zip code)
____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
and irrevocably appoint
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent
may substitute another to act for him.
Your signature:
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
Date: ________________
EXHIBIT 4.1(b)
MACDERMID, INCORPORATED
SENIOR SUBORDINATED DEBT SECURITIES
Indenture
Dated as of _______________, 1998
_____________, TRUSTEE
TABLE OF CONTENTS
Page
ARTICLE ONE - DEFINITIONS AND INCORPORATION BY REFERENCE1
Section 1.01. Definitions1
Section 1.02. Other Definitions8
Section 1.03. Incorporation by Reference of Trust Indenture Act8
Section 1.04. Rules of Construction9
ARTICLE TWO - THE SECURITIES9
Section 2.01. Form and Dating9
Section 2.02. Execution and Authentication11
Section 2.03. Registrar and Paying Agent11
Section 2.04. Paying Agent to Hold Money in Trust11
Section 2.05. Securityholder Lists12
Section 2.06. Transfer and Exchange12
Section 2.07. Replacement Securities12
Section 2.08. Outstanding Securities13
Section 2.09. Temporary Securities13
Section 2.10. Cancellation13
Section 2.11. Defaulted Interest13
Section 2.12. Treasury Securities14
Section 2.13. CUSIP Numbers14
Section 2.14. Deposit of Moneys14
Section 2.15. Book-Entry Provisions for Global Security14
ARTICLE THREE - REDEMPTION15
Section 3.01. Notices to Trustee15
Section 3.02. Selection of Securities to be Redeemed16
Section 3.03. Notice of Redemption16
Section 3.04. Effect of Notice of Redemption16
Section 3.05. Deposit of Redemption Price17
Section 3.06. Securities Redeemed in Part17
ARTICLE FOUR - COVENANTS17
Section 4.01. Payment of Securities17
Section 4.02. Maintenance of Office or Agency17
Section 4.03. Compliance Certificate17
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
Maintenance of Properties18
Section 4.05. Limitation on Senior Subordinated Indebtedness18
ARTICLE FIVE - SUCCESSOR CORPORATION19
Section 5.01. When Company May Merge, etc19
ARTICLE SIX - DEFAULTS AND REMEDIES19
Section 6.01. Events of Default19
Section 6.02. Acceleration21
Section 6.03. Other Remedies21
Section 6.04. Waiver of Existing Defaults22
Section 6.05. Control by Majority22
Section 6.06. Limitation on Suits22
Section 6.07. Rights of Holders to Receive Payment23
Section 6.08. Collection Suit by Trustee23
Section 6.09. Trustee May File Proofs of Claim23
Section 6.10. Priorities23
Section 6.11. Undertaking for Costs24
ARTICLE SEVEN - TRUSTEE24
Section 7.01. Duties of Trustee24
Section 7.02. Rights of Trustee25
Section 7.03. Individual Rights of Trustee26
Section 7.04. Trustee's Disclaimer26
Section 7.05. Notice of Defaults26
Section 7.06. Reports by Trustee to Holders26
Section 7.07. Compensation and Indemnity26
Section 7.08. Replacement of Trustee28
Section 7.09. Successor Trustee by Merger, etc29
Section 7.10. Eligibility; Disqualification29
Section 7.11. Preferential Collection of Claims Against Company29
ARTICLE EIGHT - DISCHARGE OF INDENTURE29
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government
Obligations29
Section 8.02. Survival of the Company's Obligations32
Section 8.03. Application of Trust Money33
Section 8.04. Repayment to the Company33
Section 8.05. Reinstatement33
ARTICLE NINE - AMENDMENTS, SUPPLEMENTS AND WAIVERS34
Section 9.01. Without Consent of Holders34
Section 9.02. With Consent of Holders34
Section 9.03. Compliance with Trust Indenture Act35
Section 9.04. Revocation and Effect of Consents35
Section 9.05. Notation on or Exchange of Securities36
Section 9.06. Trustee to Sign Amendments, etc.36
ARTICLE TEN - MISCELLANEOUS36
Section 10.01. Trust Indenture Act Controls36
Section 10.02. Notices36
Section 10.03. Communications by Holders with Other Holders37
Section 10.04. Certificate and Opinion as to Conditions Precedent37
Section 10.05. Statements Required in Certificate or Opinion38
Section 10.06. Rules by Trustee and Agents38
Section 10.07. Legal Holidays38
Section 10.08. Governing Law38
Section 10.09. No Adverse Interpretation of Other Agreements38
Section 10.10. No Recourse Against Others38
Section 10.11. Successors and Assigns39
Section 10.12. Duplicate Originals39
Section 10.13. Severability39
ARTICLE ELEVEN - SUBORDINATION OF SECURITIES39
Section 11.01. Securities Subordinated to Senior Indebtedness39
Section 11.02. No Payment on Securities in Certain Circumstances39
Section 11.03. Payment Over of Proceeds upon Dissolution, etc.40
Section 11.04. Subrogation41
Section 11.05. Obligations of Company Unconditional42
Section 11.06. Notice to Trustee42
Section 11.07. Reliance on Judicial Order or Certificate of Liquidating
Agent43
Section 11.08. Trustee's Relation to Senior Indebtedness43
Section 11.09. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness44
Section 11.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities44
Section 11.11. This Article Not to Prevent Events of Default44
Section 11.12. Trustee's Compensation Not Prejudiced44
Section 11.13. No Waiver of Subordination Provisions45
Section 11.14. Certain Payments May Be Paid Prior to Dissolution45
CROSS-REFERENCE TABLE
This Cross-Reference Table is not a part of the Indenture.
TIA Indenture Section - 7.10
(a)(2)7.10
(a)(3)N.A.
(a)(4)N.A.
(b)7.08; 7.10; 9.02 310
(a)7.10
(b)7.10
(c)N.A.
312(a)2.05
(b)9.03
(c)9.03
313(a)7.06
(b)(1)N.A.
(b)(2)7.06
(c)9.02
(d)7.06
314(a)4.02; 9.02
(b)N.A.
(c)(1)9.04
(c)(2)9.04
(c)(3)N.A.
(d)N.A.
(e)9.05
315(a)7.01
(b)7.05; 9.02
(c)7.01
(a) (d)7.01
(c)(e)6.10 316
(a)(last sentence)9.06
(a)(1)(A)6.05
(a)(1)(B)6.04
(a)(2)N.A.
(b)6.07 317
(a)(1)6.08
(a)(2)6.09
(b)2.04 318
(a)9.01
N.A. means Not Applicable.
INDENTURE dated as of _________________, 1998, by and between
MACDERMID, INCORPORATED, a Connecticut corporation (the "Company"), and
_______________ (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's debt securities
issued under this Indenture (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Affiliate" means, when used with reference to a specified person, any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Person specified.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notices and demands.
"Attributable Debt" means, with respect to any Capitalized Lease
Obligations, the capitalized amount thereof determined in accordance with
GAAP.
"Authorizing Resolution" means a resolution adopted by the Board of
Directors or by an Officer or committee of Officers pursuant to Board
delegation authorizing a Series of Securities.
"Bankruptcy Law" means title 11 of the United States Code, as amended, or
any similar federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of or in
such Person's capital stock or other equity interests, and options, rights or
warrants to purchase such capital stock or other equity interests, whether
now outstanding or issued after the applicable Issue Date, including, without
limitation, all Disqualified Stock and Preferred Stock.
"Capitalized Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligations will be the capitalized amount thereof determined
in accordance with GAAP.
"Change of Control Provisions" has the meaning set forth in the definition
of "Disqualified Stock" below.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the Indenture and thereafter means the successor.
"Currency Agreement" of any Person means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Subsidiaries against fluctuations in
currency values.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means any Senior Indebtedness which, at the
time of determination, has an aggregate principal amount outstanding of at
least $_____ million if the instrument governing such Senior Indebtedness
expressly states that such Indebtedness is "Designated Senior Indebtedness"
for purposes of this Indenture and a Board Resolution setting forth such
designation by the Company has been filed with the Trustee.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, on
or prior to the final maturity date of the Securities of the applicable
Series or (ii) is convertible into or exchangeable or exercisable for
(whether at the option of the issuer or the holder thereof) (a) debt
securities or (b) any Capital Stock referred to in (i) above, in each case,
at any time prior to the final maturity date of the Securities of the
applicable Series; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders
thereof (or the holders of any security into or for which such Capital Stock
is convertible, exchangeable or exercisable) the right to require the Company
to repurchase or redeem such Capital Stock upon the occurrence of a change in
control occurring prior to the final maturity date of the Securities of the
applicable Series shall not constitute Disqualified Stock if the change in
control provisions applicable to such Capital Stock are no more favorable to
such holders than any provisions described in the Authorizing Resolution or
supplemental indenture pertaining to the Securities of the applicable Series
("Change of Control Provisions") and such Capital Stock specifically provides
that the Company will not repurchase or redeem any such Capital Stock
pursuant to such provisions prior to the Company's repurchase of the
Securities of the applicable Series to the extent required pursuant to any
such Change of Control Provisions.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect on the date
of this Indenture.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (i) any liability
of such Person (a) for borrowed money or under any reimbursement obligation
relating to a letter of credit or other similar instruments (other than
standby letters of credit issued for the benefit of or surety, performance,
completion or payment bonds, earnest money notes or similar purpose
undertakings or indemnifications issued by, such Person in the ordinary
course of business), (b) evidenced by a bond, note, debenture or similar
instrument (including a purchase money obligation) given in connection with
the acquisition of any businesses, properties or assets of any kind or with
services incurred in connection with capital expenditures (other than any
obligation to pay a contingent purchase price which, as of the date of
incurrence thereof is not required to be re corded as a liability in
accordance with GAAP), or (c) in respect of Capitalized Lease Obligations (to
the extent of the Attributable Debt in respect thereof), (ii) any
Indebtedness of others that such Person has guaranteed to the extent of the
guarantee, (iii) to the extent not otherwise included, the obligations of
such Person under Currency Agreements or Interest Protection Agreements to
the extent recorded as liabilities not constituting Interest Incurred, net of
amounts recorded as assets in respect of such agreements, in accordance with
GAAP, and (iv) all Indebtedness of others secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
provided, that Indebtedness shall not include accounts payable, liabilities
to trade creditors of such Person or other accrued expenses arising in the
ordinary course of business. The amount of Indebtedness of any Person at any
date shall be (a) the outstanding balance at such date of all unconditional
obligations as described above, net of any unamortized discount to be
accounted for as Interest Expense, in accordance with GAAP, (b) the maximum
liability of such Person for any contingent obligations under clause (ii)
above at such date, net of, any unamortized discount to be accounted for as
Interest Expense in accordance with GAAP and (c) in the case of clause (iv)
above, the lesser of (1) the fair market value of any asset subject to a Lien
securing the Indebtedness of others on the date that the Lien attaches and
(2) the amount of the Indebtedness secured.
"Indenture" means this Indenture as amended or supplemented from time to
time, including pursuant to any Authorizing Resolution or supplemental
indenture pertaining to any Series.
"Insolvency or Liquidation Proceeding" means, with respect to any Person,
any liquidation, dissolution or winding up of such Person, or any bankruptcy,
reorganization, insolvency, receivership or similar proceeding with respect
to such Person, whether voluntary or involuntary.
"Interest Expense" of any Person for any period means, without duplication,
the aggregate amount of (i) interest which, in conformity with GAAP, would be
set opposite the caption "interest expense" or any like caption on an income
statement for such Person (including, without limitation, imputed interest
included in Capitalized Lease Obligations, all commissions, discounts and
other fees and charges owned with respect to letters of credit and bankers'
acceptance financing, the net costs (but reduced by net gains) associated
with Currency Agreements and Interest Protection Agreements, amortization of
other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all
other noncash interest expense other than interest and other charges
amortized to cost of sales), and (ii) all interest actually paid by the
Company or a Restricted Subsidiary under any guarantee of Indebtedness
(including, without limitation, a guarantee of principal, interest or any
combination thereof) of any Person other than the Company or any Restricted
Subsidiary during such period; provided, that Interest Expense shall exclude
any expense associated with the complete write-off of financing fees and
expenses in connection with the repayment of any Indebtedness.
"Interest Protection Agreement" of any Person means any interest rate swap
agreement, interest rate collar agreement, option or futures contract or
other similar agreement or arrangement designed to protect such Person or any
of its Subsidiaries against fluctuations in interest rates with respect to
Indebtedness permitted to be incurred under this Indenture.
"Investments" of any Person means (i) all investments by such Person in any
other Person in the form of loans, advances or capital contributions, (ii)
all guarantees of Indebtedness or other obligations of any other Person by
such person, (iii) all purchases (or other acquisitions for consideration) by
such Person of Indebtedness, Capital Stock or other securities of any other
Person and (iv) all other items that would be classified as investments in
any other Person (including, without limitation, purchases of assets outside
the ordinary course of business) on a balance sheet of such Person prepared
in accordance with GAAP.
"Issue Date" means, with respect to any Series of Securities, the date on
which the Securities of such Series are originally issued under this
Indenture.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this definition, a Person shall be deemed to own,
subject to a Lien, any Property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"Non-Recourse Indebtedness" with respect to any Person means Indebtedness of
such Person for which (i) the sole legal recourse for collection of principal
and interest on such Indebtedness is against the specific property identified
in the instruments evidencing or securing such Indebtedness and such property
was acquired with the proceeds of such Indebtedness or such Indebtedness was
incurred within 90 days after the acquisition of such property and (ii) no
other assets of such Person may be realized upon in collection of principal
or interest on such Indebtedness. Indebtedness which is otherwise Non-
Recourse Indebtedness will not lose its character as Non-Recourse
Indebtedness because there is recourse to the borrower, any guarantor or any
other Person for (i) environmental warranties and indemnities, or (ii)
indemnities for and liabilities arising from fraud, misrepresentation,
misapplication or non-payment of rents, profits, insurance and condemnation
proceeds and other sums actually received by the borrower from secured assets
to be paid to the lender, waste and mechanics' liens.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Controller or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Junior Securities" means any securities of the Company or any
other Person that are (i) equity securities or (ii) subordinated in right of
payment to all Senior Indebtedness that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the Securities
are subordinated as provided in this Indenture, in any event pursuant to a
court order so providing and as to which (a) the rate of interest on such
securities shall not exceed the effective rate of interest on the Securities
on the date of this Indenture, (b) such securities shall not be entitled to
the benefits of covenants or defaults materially more beneficial to the
holders of such securities than those in effect with respect to the
Securities on the date of this Indenture and (c) such securities shall not
provide for amortization (including sinking fund and mandatory prepayment
provisions) commencing prior to the date six months following the final
scheduled maturity date of the Senior Indebtedness (as modified by the plan
of reorganization or readjustment pursuant to which such securities are
issued).
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, incorporated or unincorporated association, joint
stock company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Post-Petition Interest" means, with respect to any Senior Indebtedness of
any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person
in accordance with and at the contract rate (including, without limitation,
any rate applicable upon default) specified in the agreement or instrument
creating, evidencing or governing such Indebtedness, whether or not, pursuant
to applicable law or otherwise, the claim for such interest is allowed as a
claim in such Insolvency or Liquidation Proceeding.
"Preferred Stock" of any Person means all Capital Stock of such Person which
has a preference in liquidation or with respect to the payment of dividends.
"Principal" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person, whether or not included in
the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Restricted Subsidiary" means any Subsidiary of the Company which is not an
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission or any successor agency
performing the duties now assigned to it under the TIA.
"Securities" means any Securities that are issued under this Indenture.
"Senior Indebtedness" means, at any date, (a) all Indebtedness of the
Company for borrowed money, including principal, premium, if any, and
interest (including Post-Petition Interest) on such Indebtedness, unless the
instrument under which such Indebtedness of the Company for money borrowed is
incurred expressly provides that such Indebtedness for money borrowed is not
senior or superior in right of payment to the Securities of the applicable
Series, and all renewals, extensions, modifications, amendments or
refinancings thereof; (b) all obligations of the Company under Interest
Protection Agreements, and (c) all obligations of the Company under Currency
Agreements. Notwithstanding the foregoing, Senior Indebtedness shall not
include (a) to the extent that it may constitute Indebtedness, any obligation
for federal, state, local or other taxes; (b) any Indebtedness between the
Company and any Subsidiary of the Company; (c) to the extent that it may
constitute Indebtedness, any obligation in respect of any trade payable
incurred for the purchase of goods or materials, or for services obtained, in
the ordinary course of business; (d) that portion of any Indebtedness that is
incurred in violation of this Indenture; (e) Indebtedness evidenced by the
Securities; (f) Indebtedness of the Company that is expressly subordinate or
junior in right of payment to any other Indebtedness of the Company; (g) to
the extent that it may constitute Indebtedness, any obligation owing under
leases (other than Capitalized Lease Obligations); and (h) any obligation
that by operation of law is subordinate to any general unsecured obligations
of the Company.
"Series" means a series of Securities established under this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which would
constitute a "significant subsidiary" as defined in Rule 1.02 of Regulation
S-X under the Securities Act and the Exchange Act.
"Subsidiary" of any Person means any corporation or other entity of which a
majority of the Capital Stock having ordinary voting power to elect a
majority of the Board of Directors or other persons performing similar
functions is at the time directly or indirectly owned or controlled by such
Person.
"TIA" means the Trust Indenture Act of 1939, as in effect from time to time.
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor
serving hereunder.
"Trust Officer" means the Chairman of the Board, the President, any Vice
President or any other officer or assistant officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
"U.S. government obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation
by the United States, which, in either case are not callable or redeemable at
the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank or trust company as custodian with respect to any such U.S.
government obligations or a specific payment of interest on or principal of
any such U.S. government obligation held by such custodian for the account of
the holder of a depositary receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the U.S. government obligation or the specific
payment of interest on or principal of the U.S. government obligation
evidenced by such depositary receipt.
"Unrestricted Subsidiary" means any Subsidiary of the Company so designated
by a resolution adopted by the Board of Directors of the Company as provided
below; provided that (a) the holders of Indebtedness thereof do not have
direct or indirect recourse against the Company or any Restricted Subsidiary,
and neither the Company nor any Restricted Subsidiary otherwise has
liability, for any payment obligations in respect of such Indebtedness
(including any undertaking, agreement or instrument evidencing such
Indebtedness), except, (i) in each case, to the extent that the amount
thereof constitutes a "restricted payment" permitted to be made under any
provisions set forth limiting the making or paying of a "restricted payment"
under the Authorizing Resolution or supplemental indenture pertaining to an
applicable Series ("Restricted Payment Provisions"), (ii) in the case of Non-
Recourse Indebtedness, to the extent such recourse or liability is for the
matters discussed in the last sentence of the definition of "Non-Recourse
Indebtedness," or (iii) to the extent such Indebtedness is a guarantee by
such Subsidiary of Indebtedness of the Company or a Restricted Subsidiary and
(b) no holder of any Indebtedness of such Subsidiary shall have a right to
declare a default on such Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity as a result of a default
on any Indebtedness of the Company or any Restricted Subsidiary. Subject to
the foregoing, the Board of Directors of the Company may designate any
Subsidiary to be an Unrestricted Subsidiary; provided, however, that (i) the
net amount (the "Designation Amount") then outstanding of all previous
Investments by the Company and the Restricted Subsidiaries in such Subsidiary
will be deemed to be a "restricted payment" pursuant to any Restricted
Payment Provisions at the time of such designation and will reduce the amount
available for other restricted payments under any Restricted Payment
Provisions, to the extent provided therein, (ii) the Company must be
permitted under any Restricted Payment Provisions to make the "restricted
payment" deemed to have been made pursuant to clause (i), and (iii) after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing. The Board of Directors of the Company may also
redesignate an Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that (i) the Indebtedness of such Unrestricted Subsidiary
as of the date of such redesignation could then be incurred under any
provisions set forth limiting the incurrence of Indebtedness under the
Authorizing Resolution or supplemental indenture pertaining to an applicable
Series ("Debt Limitation Provisions"), (ii) immediately after giving effect
to such redesignation and the incurrence of any such additional Indebtedness,
the Company and the Restricted Subsidiaries could incur $1.00 of additional
Indebtedness under any debt incurrence covenant ratio set forth in any Debt
Limitation Provisions and (iii) the Liens of such Unrestricted Subsidiary as
of the date of such redesignation could then be incurred in accordance with
any provisions set forth limiting the creation or existence of Liens under
the Authorizing Resolution or supplemental indenture pertaining to an
applicable Series ("Lien Limitation Provisions"). Any such designation or
redesignation by the Board of Directors of the Company will be evidenced to
the Trustee by the filing with the Trustee of a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation or redesignation and an Officers' Certificate certifying that
such designation or redesignation complied with the foregoing conditions and
setting forth the underlying calculations of such Officers' Certificate. The
designation of any Person as an Unrestricted Subsidiary shall be deemed to
include a designation of all Subsidiaries of such Person as Unrestricted
Subsidiaries; provided, however, that the ownership of the general
partnership interest or a similar member's interest in a limited liability
company by an Unrestricted Subsidiary shall not cause a Subsidiary of the
Company of which more than 95% of the equity interest is held by the Company
or one or more Restricted Subsidiaries to be deemed an Unrestricted
Subsidiary.
Section 1.02. Other Definitions.
-----------------
Term Defined in
"Agent Members" 2.15
"Business Day" 11.07
"Custodian" 6.01
"Depository" 2.15
"Event of Default" 6.01
"Legal Holiday" 11.07
"Paying Agent" 2.03
"Registrar" 2.03
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture securities" means the Securities.
"Indenture security holder" means a Securityholder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "Institutional trustee" means the Trustee.
"Obligor" on the indenture securities means the Company or any other obligor
on the Securities of a Series.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the
singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
THE SECURITIES
Section 2.01. Form and Dating.
The aggregate principal amount of Securities that may be issued under
this Indenture is unlimited. The Securities may be issued from time to time
in one or more Series. Each Series shall be created by an Authorizing
Resolution or a supplemental indenture that establishes the terms of the
Series, which may include the following:
(1) the title of the Series;
(2) the aggregate principal amount (or any limit on the aggregate principal
amount) of the Series and, if any Securities of a Series are to be
issued at a discount from their face amount, the method of computing the
accretion of such discount;
(3) the interest rate or method of calculation of the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Securities of the Series;
(6) the dates when, places where and manner in which principal and interest
are payable;
(7) the Registrar and Paying Agent;
(8) the terms of any mandatory (including any sinking fund requirements) or
optional redemption by the Company;
(9) the terms of any redemption at the option of Holders;
(10) the denominations in which Securities are issuable;
(11) whether Securities will be issued in registered or bearer form and the
terms of any such forms of Securities;
(12) whether any Securities will be represented by a global Security and the
terms of any such global Security;
(13) the currency or currencies (including any composite currency) in which
principal or interest or both may be paid;
(14) if payments of principal or interest may be made in a currency other
than that in which Securities are denominated, the manner for
determining such payments;
(15) provisions for electronic issuance of Securities or issuance of
Securities in uncertificated form;
(16) any Events of Default, covenants and/or defined terms in addition to or
in lieu of those set forth in this Indenture;
(17) whether and upon what terms Securities may be defeased if different
from the provisions set forth in this Indenture;
(18) the form of the Securities, which, unless the Authorizing Resolution or
supplemental indenture otherwise provides, shall be in the form of
Exhibit A;
(19) any terms that may be required by or advisable under applicable law;
(20) the percentage of the principal amount of the Securities which is
payable if the maturity of the Securities is accelerated in the case of
Securities issued at a discount from their face amount;
(21) whether any Securities will have guarantees; and
(22) any other terms in addition to or different from those contained in
this Indenture.
All Securities of one Series need not be issued at the same time and,
unless otherwise provided, a Series may be reopened for issuances of
additional Securities of such Series pursuant to an Authorizing Resolution,
an Officers' Certificate or in any indenture supplemental hereto. The
creation and issuance of a Series and the authentication and delivery thereof
are not subject to any conditions precedent.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue upon
receipt of an Officers' Certificate of the Company. Each Security shall be
dated the date of its authentication.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an
office or agency where Securities may be presented for payment ("Paying
Agent") and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent and the Trustee shall have the right to inspect the Securities register
at all reasonable times to obtain copies thereof, and the Trustee shall have
the right to rely upon such register as to the names and addresses of the
Holders and the principal amounts and certificate numbers thereof. If the
Company fails to maintain a Registrar or Paying Agent or fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of Securityholders
and the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities, and shall notify the Trustee of
any default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon doing so the Paying Agent
shall have no further liability for the money.
Section 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least 7 Business Days before each semiannual
interest payment date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders.
Section 2.06. Transfer and Exchange.
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the New York Uniform
Commercial Code are met. Where Securities are presented to the Registrar or
a co-Registrar with a request to exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall make the exchange
as requested if the same requirements are met. To permit transfers and
exchanges, the Trustee shall authenticate Securities at the Registrar's
request. The Registrar need not transfer or exchange any Security selected
for redemption, except the unredeemed part thereof if the Security is
redeemed in part, or transfer or exchange any Securities for a period of 15
days before a selection of Securities to be redeemed. Any exchange or
transfer shall be without charge, except that the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto except in the case of exchanges pursuant to 2.09,
3.06, or 9.05 not involving any transfer.
Any Holder of a global Security shall, by acceptance of such global
Security, agree that transfers of beneficial interests in such global
Security may be effected only through a book entry system maintained by the
Holder of such global Security (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a
book entry.
Section 2.07. Replacement Securities.
If the Holder of a Security claims that the Security has been lost,
destroyed, mutilated or wrongfully taken, the Company shall issue and, upon
written request of any Officer of the Company, the Trustee shall authenticate
a replacement Security, provided in the case of a lost, destroyed or
wrongfully taken Security, that the requirements of Section 8-405 of the New
York Uniform Commercial Code are met. If any such lost, destroyed, mutilated
or wrongfully taken Security shall have matured or shall be about to mature,
the Company may, instead of issuing a substitute Security therefor, pay such
Security without requiring (except in the case of a mutilated Security) the
surrender thereof. An indemnity bond must be sufficient in the judgment of
the Company and the Trustee to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Security is replaced,
including the acquisition of such Security by a bona fide purchaser. The
Company or the Trustee may charge for its expenses in replacing a Security.
Section 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it and those described in this
Section. A Security does not cease to be outstanding because the Company
or one of its Affiliates holds the Security. If a Security is replaced
pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Security is held by a
bona fide purchaser. If the Paying Agent holds on a redemption date or
maturity date money sufficient to pay Securities payable on that date, then
on and after that date such Securities cease to be outstanding and interest
on them ceases to accrue.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 2.09. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but
may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and, upon
surrender for cancellation of the temporary Security, the Company shall
execute and the Trustee shall authenticate definitive Securities in exchange
for temporary Securities. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.
Section 2.10. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange,
redemption or payment. The Trustee and no one else shall cancel and destroy,
or retain in accordance with its standard retention policy, all Securities
surrendered for registration or transfer, exchange, redemption, paying or
cancellation. Unless the Authorizing Resolution so provides, the Company may
not issue new Securities to replace Securities that it has previously paid or
delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest plus any interest payable on the defaulted
interest to the persons who are Securityholders on a subsequent special
record date. The Company shall fix such special record date and a payment
date which shall be reasonably satisfactory to the Trustee. At least 15 days
before such special record date, the Company shall mail to each
Securityholder a notice that states the record date, the payment date and the
amount of defaulted interest to be paid. On or before the date such notice
is mailed, the Company shall deposit with the Paying Agent money sufficient
to pay the amount of defaulted interest to be so paid. The Company may pay
defaulted interest in any other lawful manner if, after notice given by the
Company to the Trustee of the proposed payment, such manner of payment shall
be deemed practicable by the Trustee.
Section 2.12. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any direction, waiver, consent or
notice, Securities owned by the Company or any of its Affiliates shall be
considered as though they are not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee actually
knows are so owned shall be so considered.
Section 2.13. CUSIP Numbers.
The Company in issuing the Securities of any Series may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such Securities;
provided that no representation is hereby deemed to be made by the Trustee as
to the correctness or accuracy of any such CUSIP number printed in the notice
or on such Securities, and that reliance may be placed only on the other
identification numbers printed on such Securities. The Company shall
promptly notify the Trustee of any change in any CUSIP number.
Section 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each interest payment date and
maturity date with respect to each Series of Securities, the Company shall
have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments due on such interest payment date or
maturity date, as the case may be, in a timely manner which permits the
Paying Agent to remit payment to the Holders on such interest payment date or
maturity date, as the case may be.
Section 2.15. Book-Entry Provisions for Global Security.
(a) Any global Security of a Series initially shall (i) be registered
in the name of the depository who shall be identified in the Authorizing
Resolution or supplemental indenture relating to such Securities (the
"Depository") or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear any required legends.
Members of, or participants in, the Depository ("Agent Members") shall have
no rights under this Indenture with respect to any global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
the global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of any global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the global Security may be
transferred or exchanged for definitive Securities in accordance with the
rules and procedures of the Depository. In addition, definitive Securities
shall be transferred to all beneficial owners in exchange for their
beneficial interests in a global Security if (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for the
global Security and a successor depository is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depository to
issue definitive Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more definitive Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of the global Security in an amount equal to the principal
amount of the beneficial interest in the global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more definitive Securities of like tenor and amount.
(d) In connection with the transfer of an entire global Security to
beneficial owners pursuant to paragraph (b), the global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the global Security, an equal aggregate principal amount of
definitive Securities of authorized denominations.
(e) The Holder of any global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities of such Series.
ARTICLE THREE
REDEMPTION
Section 3.01. Notices to Trustee.
Securities of a Series that are redeemable prior to maturity shall be
redeemable in accordance with their terms and, unless the Authorizing
Resolution or supplemental indenture provides otherwise, in accordance with
this Article.
If the Company wants to redeem Securities pursuant to Paragraph 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Securities to be redeemed. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to
Holders. Any such cancelled notice shall be void and of no effect. If the
Company wants to credit any Securities previously redeemed, retired or
acquired against any redemption pursuant to Paragraph 6 of the Securities, it
shall notify the Trustee of the amount of the credit and it shall deliver any
Securities not previously delivered to the Trustee for cancellation with such
notice.
The Company shall give each notice provided for in this Section 3.01 at
least 30 days before the notice of any such redemption is to be mailed to
Holders (unless a shorter notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Securities to be Redeemed.
If fewer than all of the Securities of a Series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities outstanding not previously called for redemption and shall
promptly notify the Company of the serial numbers or other identifying
attributes of the Securities so selected. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than the minimum denomination for the Series. Securities and portions
of them it selects shall be in amounts equal to the minimum denomination for
the Series or an integral multiple thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed. The notice shall
identify the Securities to be redeemed and shall state: (1) the redemption
date; (2) the redemption price; (3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the Paying
Agent to collect the redemption price; (5) that interest on Securities called
for redemption ceases to accrue on and after the redemption date; and (6)
that the Securities are being redeemed pursuant to the mandatory redemption
or the optional redemption provisions, as applicable. At the Company's
request, the Trustee shall give the notice of redemption in the Company's
name and at its expense; provided, however, that the Company shall deliver to
the Trustee at least 15 days prior to the date on which notice of redemption
is to be mailed or such shorter period as may be satisfactory to the Trustee,
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price as
set forth in the notice of redemption. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price, plus accrued interest
to the redemption date.
Section 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent immediately available funds sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for each Holder a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a Series on the
dates and in the manner provided in the Securities of the Series. An
installment of principal or interest shall be considered paid on the date it
is due if the Paying Agent holds on that date money designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue principal at the rate borne by
the Series; it shall pay interest on overdue installments of interest at the
same rate.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee.
Section 4.03. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether
or not the signers know of any Default by the Company in performing any of
its obligations under this Indenture. If they do know of such a Default, the
certificate shall describe the Default.
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
Maintenance of Properties.
The Company will:
(a) cause to be paid and discharged all lawful taxes, assessments and
governmental charges or levies imposed upon the Company and its Restricted
Subsidiaries or upon the income or profits of the Company and its Restricted
Subsidiaries or upon property or any part thereof belonging to the Company
and its Restricted Subsidiaries before the same shall be in default, as well
as all lawful claims for labor, materials and supplies which, if unpaid,
might become a lien or charge upon such property or any part thereof;
provided, however, that the Company shall not be required to cause to be paid
or discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the nonpayment thereof does not, in the judgment of the
Company, materially adversely affect the ability of the Company and the
Restricted Subsidiaries to pay all obligations under the Indenture when due;
and provided further that the Company shall not be required to cause to be
paid or discharged any such tax, assessment, charge, levy or claim if, in the
judgment of the Company, such payment shall not be advantageous to the
Company in the conduct of its business and if the failure so to pay or
discharge does not, in its judgment, materially adversely affect the ability
of the Company and the Restricted Subsidiaries to pay all obligations under
this Indenture when due;
(b) cause to be done all things necessary to preserve and keep in full
force and effect the corporate existence of the Company and each of its
Restricted Subsidiaries and to comply with all applicable laws; provided,
however, that nothing in this subsection (b) shall prevent a consolidation or
merger of the Company or any Restricted Subsidiary not prohibited by the
provisions of Article Five or any other provision or the Authorizing
Resolution or supplemental indenture pertaining to a Series, and the Company
need not maintain the corporate existence of an immaterial Restricted
Subsidiary; and
(c) at all times keep, maintain and preserve all the property of the
Company and the Restricted Subsidiaries in good repair, working order and
condition (reasonable wear and tear excepted) and from time to time make all
needful and proper repairs, renewals, replacements, betterments and
improvements thereto, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided, however,
that nothing in this subsection (c) shall prevent the Company from
discontinuing the operation and maintenance of any such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of its business and not disadvantageous in any material respect to the
ability of the Company and the Restricted Subsidiaries to pay all obligations
under this Indenture when due.
Section 4.05. Limitation on Senior Subordinated Indebtedness.
The Company shall not, directly or indirectly, incur any Indebtedness
that by its terms would expressly rank senior in right of payment to the
Securities of any Series and expressly rank subordinate in right of payment
to any Senior Indebtedness.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge with or into, any other
corporation, or transfer all or substantially all of its assets to, any
entity unless permitted by law and unless (1) the resulting, surviving or
transferee entity, which shall be a corporation organized and existing under
the laws of the United States or a State thereof, assumes by supplemental
indenture, in a form reasonably satisfactory to the Trustee, all of the
obligations of the Company under the Securities and this Indenture and (2)
immediately after giving effect to, and as a result of, such transaction, no
Default or Event of Default shall have occurred and be continuing.
Thereafter such successor corporation or corporations shall succeed to and be
substituted for the Company with the same effect as if it had been named
herein as the "Company" and all such obligations of the predecessor
corporation shall terminate. The Company shall deliver to the Trustee prior
to the consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture. To
the extent that an Authorizing Resolution or supplemental indenture
pertaining to any Series provides for different provisions relating to the
subject matter of this Article Five, the provisions in such Authorizing
Resolution or supplemental indenture shall govern for purposes of such
Series.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" on a Series occurs if, voluntarily or
involuntarily, whether by operation of law or otherwise, any of the following
occurs:
(1) the failure by the Company to pay interest on any Security of such
Series when the same becomes due and payable and the continuance of
any such failure for a period of 30 days, whether or not such
payment is prohibited by Article Eleven hereof;
(2) the failure by the Company to pay the principal or premium of any
Security of such Series when the same becomes due and payable at
maturity, upon acceleration or otherwise, whether or not such
payment is prohibited by Article Eleven hereof;
(3) the failure by the Company or any Restricted Subsidiary to comply
with any of its agreements or covenants in, or provisions of, the
Securities of such Series or this Indenture (as they relate
thereto) and such failure continues for the period and after the
notice specified below (except in the case of a default with
respect to any Change of Control Provisions or Article Five (or any
replacement provisions as contemplated by Article Five), which will
constitute Events of Default with notice but without passage of
time);
(4) the acceleration of any Indebtedness (other than Non-Recourse
Indebtedness) of the Company or any Restricted Subsidiary in an
amount of $______ million or more, individually or in the
aggregate, and such acceleration does not cease to exist, or such
Indebtedness is not satisfied, in either case within five days
after such acceleration;
(5) the failure by the Company or any Restricted Subsidiary to make any
principal or interest payment in an amount of $________ million or
more, individually or in the aggregate, in respect of Indebtedness
(other than Non-Resource Indebtedness) of the Company or any
Restricted Subsidiary within five days of such principal or
interest becoming due and payable (after giving effect to any
applicable grace period set forth in the documents governing such
Indebtedness);
(6) a final judgment or judgments in an amount of $________ million or
more, individually or in the aggregate, for the payment of money
having been entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such
judgment or judgments is not satisfied, stayed, annulled or
rescinded within 60 days of being entered;
(7) the Company or any Restricted Subsidiary that is a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property or
(D) makes a general assignment for the benefit of its creditors; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted Subsidiary
that is a Significant Subsidiary as debtor in an involuntary
case,
(B) appoints a Custodian of the Company or any Restricted Subsidiary
that is a Significant Subsidiary or a Custodian for all or
substantially all of the property of the Company or any
Restricted Subsidiary that is a Significant Subsidiary, or
(C) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary, and the order or
decree remains unstayed and in effect for 60 days.
Default as described in sub-clause (3) above will not be deemed an Event
of Default until the Trustee notifies the Company, or the Holders of at least
25 percent in principal amount of the then outstanding Securities of the
applicable Series notify the Company and the Trustee, of the Default and
(except in the case of a default with respect to any Change of Control
Provisions or Article Five (or any replacement provisions as contemplated by
Article Five)) the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." If such a
Default is cured within such time period, it ceases. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Company resulting from sub-clauses (7) or (8) above), shall have occurred
and be continuing under the Indenture, the Trustee by notice to the Company,
or the Holders of at least 25 percent in principal amount of the Securities
of the applicable Series then outstanding by notice to the Company and the
Trustee, may declare all Securities of such Series to be due and payable
immediately. Upon such declaration of acceleration, the amounts due and
payable on the Securities of such Series will be due and payable immediately.
If an Event of Default with respect to the Company specified in sub-clauses
(7) or (8) above occurs, all amounts due and payable on the Securities of
such Series will ipso facto become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee and the
Company or any Holder. The Holders of a majority in principal amount of the
Securities of such Series then outstanding by written notice to the Trustee
and the Company may waive any Default or Event of Default (other than any
continuing Default or Event of Default in payment of principal or interest)
with respect to such Series of Securities under the Indenture. Holders of a
majority in principal amount of the then outstanding Securities of such
Series may rescind an acceleration with respect to such Series and its
consequence (except an acceleration due to nonpayment of principal or
interest on the Securities of such Series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
No such rescission shall extend to or shall affect any subsequent Event
of Default, or shall impair any right or power consequent thereon.
Section 6.03. Other Remedies.
If an Event of Default on a Series occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on the Series or to enforce
the performance of any provision in the Securities or this Indenture
applicable to the Series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Existing Defaults.
Subject to Section 9.02, the Holders of a majority in principal amount
of the outstanding Securities of a Series on behalf of all the Holders of the
Series by notice to the Trustee may waive an existing Default on such Series
and its consequences. When a Default is waived, it is cured and stops
continuing, and any Event of Default arising therefrom shall be deemed to
have been cured; but no such waiver shall 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 principal amount of the outstanding
Securities of a Series 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 it with respect to such Series. The Trustee,
however, may refuse to follow any direction (i) that conflicts with law or
this Indenture, (ii) that, subject to Section 7.01, the Trustee determines is
unduly prejudicial to the rights of other Securityholders, (iii) that would
involve the Trustee in personal liability or (iv) if the Trustee shall not
have been provided with indemnity satisfactory to it.
Section 6.06. Limitation on Suits.
A Securityholder of a Series may not pursue any remedy with respect to
this Indenture or the Series unless:
(1) the Holder gives to the Trustee written notice of a continuing Event of
Default on the Series;
(2) the Holders of at least a majority in principal amount of the
outstanding Securities of the Series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) no written request inconsistent with such written request shall have
been given to the Trustee pursuant to this Section 6.06. A
Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over
another Securityholder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal and interest remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company,
its creditors or its property, and unless prohibited by applicable law or
regulation, may vote on behalf of the Holders in any election of a Custodian,
and shall be entitled and empowered to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute
the same and any Custodian in any such judicial proceeding is hereby
authorized by each Securityholder to make such payments to the Trustee.
Nothing herein shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder or to authorize the Trustee to vote in
respect of the claim of any Securityholder except as aforesaid for the
election of the Custodian.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders of the Series for amounts due and unpaid on
the Series for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Series
for principal and interest, respectively; and
Third: to the Company as its interests may appear.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
the due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than
10% in principal amount of the Series.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall, prior to the receipt of directions from the Holders of a majority in
principal amount of the Securities, exercise its rights and powers 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically set
forth in this Indenture and no others and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. The Trustee, however,
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of mathematical calculations or other facts or
matters stated therein.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
(2) The Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05 or any other direction of the Holders permitted
hereunder.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
(g) None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if there shall be reasonable grounds for believing
that the repayment of such funds or adequate indemnity against such liability
is not reasonably assured to it.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting on any document, resolution, certificate, instrument, report, or
direction 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, resolution, certificate, instrument, report, or
direction.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both, which shall conform
to Sections 10.04 and 10.05 hereof and containing such other statements as
the Trustee reasonably deems necessary to perform its duties hereunder. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on the Officers' Certificate, Opinion of Counsel or any
other direction of the Company permitted hereunder.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel, and the written advice of such
counsel or any Opinion of Counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, omitted
or suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(f) Unless otherwise specifically provided in the Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed
by an Officer of the Company.
(g) For all purposes under this Indenture, the Trustee shall not be deemed
to have notice or knowledge of any Event of Default (other than under Section
6.01(1) or 6.01(2)) unless a Trust Officer assigned to and working in the
Trustee's corporate trust office has actual knowledge thereof or unless
written notice of any Event of Default is received by the Trustee at its
address specified in Section 10.02 hereof and such notice references the
Securities generally, the Company or this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee, however, must comply
with Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture, the Securities or of any prospectus used to sell the Securities;
it shall not be accountable for the Company's use of the proceeds from the
Securities; it shall not be accountable for any money paid to the Company, or
upon the Company's direction, if made under and in accordance with any
provision of this Indenture; it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee;
and it shall not be responsible for any statement of the Company in this
Indenture or in the Securities other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default on a Series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder of the Series notice
of the Default (which shall specify any uncured Default known to it) within
90 days after it occurs. Except in the case of a default in payment of
principal of or interest on a Series, the Trustee may withhold the notice if
and so long as the board of directors of the Trustee, the executive or any
trust committee of such directors and/or responsible officers of the Trustee
in good faith determine(s) that withholding the notice is in the interests of
Holders of the Series.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(2) has occurred within the twelve
months preceding the reporting date no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b). A copy of each report at
the time of its mailing to Securityholders shall be delivered to the Company
and filed by the Trustee with the SEC and each national securities exchange
on which the Securities are listed. The Company agrees to notify the Trustee
of each national securities exchange on which the Securities are listed.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee or predecessor trustee from time to
time reasonable compensation for their respective services subject to any
written agreement between the Trustee and the Company. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel. The Company shall indemnify
the Trustee and each predecessor trustee, its officers, directors, employees
and agents and hold it harmless against any loss, liability or expense
incurred or made by or on behalf of it in connection with the administration
of this Indenture or the trust hereunder and its duties hereunder including
the costs and expenses of defending itself against or investigating any claim
in the premises. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
the Trustee's, or its officers', directors', employees' or agents' negligence
or bad faith. To ensure the Company's payment obligations in this Section,
the Trustee shall have a claim prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal of or interest on particular Securities. When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 6.01 or in connection with Article Six hereof, the expenses
(including the reasonable fees and expenses of its counsel) and the
compensation for services in connection therewith are to constitute expenses
of administration under any bankruptcy law.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the removed Trustee in writing and may appoint a
successor trustee with the Company's consent. Such resignation or removal
shall not take effect until the appointment by the Securityholders or the
Company as hereinafter provided of a successor trustee and the acceptance of
such appointment by such successor trustee. The Company may remove the
Trustee and any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee for any or no reason, including if:
(1) the Trustee fails to comply with Section 7.10 after written request by
the Company or any bona fide Securityholder who has been a Securityholder for
at least six months;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor
trustee. If a successor trustee does not take office within 45 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or any Holder may petition any court of competent jurisdiction for the
appointment of a successor trustee. A successor trustee shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
trustee shall have all the rights, powers and duties of the Trustee under
this Indenture. A successor trustee shall mail notice of its succession to
each Securityholder.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges with or into or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall
be the successor trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of
TIA Section 310(a)(1). The Trustee shall have a combined capital and surplus
of at least $10,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.
(a) The Company may, at its option and, subject to the provisions of Article
Eleven hereof, at any time, elect to have either paragraph (b) or paragraph
(c) below be applied to the outstanding Securities of any Series upon
compliance with the applicable conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (b), the Company shall be deemed to have been released and
discharged from its obligations with respect to the outstanding Securities of
a Series on the date the applicable conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities of a Series, which
shall thereafter be deemed to be "outstanding" only for the purposes of the
Sections and matters under this Indenture referred to in (i) and (ii) below,
and to have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned, except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Securities of a Series to
receive solely from the trust fund described in paragraph (d) below and as
more fully set forth in such paragraph, payments in respect of the principal
of and interest on such Securities when such payments are due and (ii)
obligations listed in Section 8.02, subject to compliance with this Section
8.01. The Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below
with respect to such Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (c), the Company shall be released and discharged from the
obligations under any covenant contained in Article Five and any other
covenant contained in the Authorizing Resolution or supplemental indenture
relating to such Series to the extent provided for therein, on and after the
date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Securities of such Series shall thereafter be deemed to
be not "outstanding" for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities of a Series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any
such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 6.01(3), but,
except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either paragraph
(b) or paragraph (c) above to the outstanding Securities of the applicable
Series:
(1) The Company shall have irrevocably deposited in trust with the Trustee,
pursuant to an irrevocable trust and security agreement in form and substance
reasonably satisfactory to the Trustee, money in U.S. dollars or U.S.
government obligations or a combination thereof in such amounts and maturing
at such times as are sufficient, together with earnings thereon, in the
opinion of a nationally recognized firm of independent public accountants, to
pay the principal of and interest on the outstanding Securities of such
Series to maturity or redemption; provided, however, that the Trustee (or
other qualifying trustee) shall have received an irrevocable written order
from the Company instructing the Trustee (or other qualifying trustee) to
apply such money or the proceeds of such U.S. government obligations to said
payments with respect to the Securities of such Series to maturity or
redemption;
(2) No Default or Event of Default shall have occurred and be continuing on
the date of such deposit;
(3) Such deposit will not result in a Default under this Indenture or a
breach or violation of, or constitute a default under, any other material
instrument or agreement to which the Company or any of any of its
Subsidiaries is a party or by which it or any of their property is bound;
(4) (i) In the event the Company elects paragraph (b) hereof, the Company
shall deliver to the Trustee an Opinion of Counsel in the United States, in
form and substance reasonably satisfactory to the Trustee, to the effect that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the Issue Date pertaining to
such Series, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall state that, or
(ii) in the event the Company elects paragraph (c) hereof, the Company
shall deliver to the Trustee an Opinion of Counsel in the United States, in
form and substance reasonably satisfactory to the Trustee, to the effect
that, in the case of clauses (i) and (ii), Holders of the Securities of such
Series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and the defeasance contemplated hereby
and will be subject to federal income tax in the same amounts and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers'
Certificate, stating that the deposit under clause (1) was not made by the
Company with the intent of preferring the Holders of the Securities of such
Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel,
reasonably satisfactory to the Trustee, to the effect that, (A) the trust
funds will not be subject to the rights of Holders of Indebtedness of the
Company other than the Securities of such Series and (B) assuming no
intervening bankruptcy of the Company between the date of deposit and the
91st day following the deposit and that no Holder of Securities of such
Series is an insider of the Company, after the 91st day following the
deposit, the trust funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting creditors' rights
generally; and
(7) The Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent specified
herein relating to the defeasance contemplated by this Section 8.01 have been
complied with. In the event all or any portion of the Securities of a Series
are to be redeemed through such irrevocable trust, the Company must make
arrangements satisfactory to the Trustee, at the time of such deposit, for
the giving of the notice of such redemption or redemptions by the Trustee in
the name and at the expense of the Company.
(e) In addition to the Company's rights above under this Section 8.01, the
Company may terminate all of its obligations under this Indenture with
respect to a Series, when:
(1) All Securities of such Series theretofore authenticated and delivered
(other than Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07 and Securities for
whose payment money has theretofore been deposited in trust or segregated and
held intrust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for
cancellation or all such Securities not theretofore delivered to the Trustee
for cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for that purpose an amount of money sufficient to pay and discharge
the entire Indebtedness on the Securities not theretofore delivered to the
Trustee for cancellation, for principal of and interest;
(2) The Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) The Company has delivered irrevocable instructions to the Trustee to
apply the deposited money toward the payment of the Securities at maturity or
redemption, as the case may be; and
(4) The Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, stating that all conditions precedent specified herein
relating to the satisfaction and discharge of this Indenture have been
complied with.
Section 8.02. Survival of the Company's Obligations.
Notwithstanding the satisfaction and discharge of the Indenture under
Section 8.01, the Company's obligations in paragraph 9 of the Securities and
Sections 2.03 through 2.07, 4.01, 7.07, 7.08, 8.04 and 8.05, however, shall
survive until the Securities of an applicable Series are no longer
outstanding. Thereafter, the Company's obligations in paragraph 9 of the
Securities of such Series and Sections 7.07, 8.04 and 8.05 shall survive (as
they relate to such Series).
Section 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. government obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited
money and the money from U.S. government obligations in accordance with this
Indenture to the payment of principal of and interest on the Securities of
the defeased Series.
Section 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time. The Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once in a newspaper of general circulation in the City of New
York or mail to each such Holder notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Securityholders entitled to the money must look to the Company for
payment as general creditors unless applicable abandoned property law
designates another person and all liability of the Trustee or such Paying
Agent with respect to such money shall cease.
Section 8.05. Reinstatement.
If the Trustee is unable to apply any money or U.S. government
obligations in accordance with Section 8.01 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 Securities relating to the
Series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee is permitted to apply
all such money or U.S. government obligations in accordance with Section
8.01; provided, however, that (a) if the Company has made any payment of
interest on or principal of any Securities of the Series because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. government obligations held by the Trustee and (b) unless
otherwise required by any legal proceeding or any order or judgment of any
court or governmental authority, the Trustee shall return all such money or
U.S. government obligations to the Company promptly after receiving a written
request therefor at any time, if such reinstatement of the Company's
obligations has occurred and continue to be in effect.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of a Series without notice to or consent of any Securityholder
of such Series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide that specific provisions of this Indenture shall not apply to
a Series not previously issued;
(4) to create a Series and establish its terms;
(5) to provide for uncertificated Securities in addition to or in place of
certificated Securities; and
(6) to make any other change that does not adversely affect the rights of
Securityholders.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail notice of such amendment to the Securityholders.
Section 9.02. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of a Series without notice to any Securityholder of such
Series but with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each such Series affected
by the amendment. Each such Series shall vote as a separate class. The
Holders of a majority in principal amount of the outstanding Securities of
any Series may waive compliance by the Company with any provision of the
Securities of such Series or of this Indenture relating to such Series
without notice to any Securityholder. Without the consent of each
Securityholder of a Series affected, however, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest, including
defaulted interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any Security or
alter the provisions (including related definitions) with respect to
redemption of Securities pursuant to Article Three hereof or with
respect to any obligations on the part of the Company to offer to
purchase or to redeem Securities of a Series pursuant to the Authorizing
Resolution or supplemental indenture pertaining to such Series;
(4) modify the ranking or priority of the Securities of any Series;
(5) make any change in Sections 6.04, 6.07 or this 9.02;
(6) waive a continuing Default or Event of Default in the payment of the
principal of or interest on any Security; or
(7) make any Security payable at a place or in money other than that stated
in the Security, or impair the right of any Securityholder to bring suit
as permitted by Section 6.07.
An amendment of a provision included solely for the benefit of one or
more Series does not affect the interests of Securityholders of any other
Series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplement, but it
shall be sufficient if such consent approves the substance thereof.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder shall bind
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. Subject to the
following paragraph, any such Holder or subsequent Holder, however, may
revoke the consent as to his Security or portion of a Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders of Securities of any Series
entitled to consent to any amendment, supplement or waiver, which record date
shall be at least 10 days prior to the first solicitation of such consent.
If a record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 90 days after such record date. After an
amendment, supplement or waiver becomes effective, it shall bind every
Holder, unless it makes a change described in any of clauses (1) through (7)
of Section 9.02, in which case, the amendment, supplement or waiver shall
bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
Section 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Company may require the Holder of the Security to deliver it to the
Trustee, at which time the Trustee shall place an appropriate notation on the
Security about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
Subject to Section 7.02(b), the Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article if the amendment,
supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but
need not sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental indenture
is authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in
accordance with its terms.
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 10.02. Notices.
Any order, consent, notice or communication shall be sufficiently given
if in writing and delivered in person or mailed by first class mail, postage
prepaid, addressed as follows:
if to the Company:
MacDermid, Incorporated
245 Freight Street
Waterbury, Connecticut 06702
Attention: Daniel Leever, President
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail at his address as it appears on the registration
books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it
except that notice to the Trustee shall only be effective upon receipt
thereof by the Trustee.
If the Company mails notice or communications to the Securityholders, it
shall mail a copy to the Trustee at the same time.
Section 10.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
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 shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set forth
in Section 10.05) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in
Section 10.05) stating that, in the opinion of such counsel, all such
conditions precedent and covenants, compliance with which constitutes a
condition precedent, if any, provided for in this Indenture relating to
the proposed action or inaction, have been complied with and that any
such section does not conflict with the terms of the Indenture.
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 shall include:
(1) a statement that the person making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for
its functions.
Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions in Boston, Massachusetts and New York, New York
are not required to be open. If a payment date is a Legal Holiday at a place
of payment, payment may be made at that place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the intervening
period. A Business Day is any day other than a Legal Holiday.
Section 10.08. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities of each Series.
Section 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 10.10. No Recourse Against Others.
All liability described in paragraph 13 of the Securities of any
director, officer, employee or stockholder, as such, of the Company is waived
and released.
Section 10.11. Successors and Assigns.
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successors and assigns.
Section 10.12. 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 10.13. Severability.
In case any one or more of the provisions contained in this Indenture or
in the Securities of a Series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or
of such Securities.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
Section 11.01. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and the Trustee and each Holder of the
Securities by its acceptance thereof likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article Eleven;
and each person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all
payments of the principal of and interest on the Securities by the Company
shall, to the extent and in the manner set forth in this Article Eleven, be
subordinated and junior in right of payment to the prior payment in full in
cash of all amounts payable under Senior Indebtedness.
Section 11.02. No Payment on Securities in Certain Circumstances.
(a) No direct or indirect payment (excluding any payment or distribution of
Permitted Junior Securities) by or on behalf of the Company of principal of
or interest on the Securities, except from those funds held in trust for the
benefit of Holders of any Securities pursuant to the procedures set forth in
Article Eight hereof, whether pursuant to the terms of the Securities, upon
acceleration or otherwise, shall be made if, at the time of such payment,
there exists a default in the payment of all or any portion of the
obligations on any Senior Indebtedness, whether at maturity, on account of
mandatory redemption or prepayment, acceleration or otherwise, and such
default shall not have been cured or waived or the benefits of this sentence
waived by or on behalf of the holders of such Senior Indebtedness. In
addition, during the continuance of any non-payment event of default with
respect to any Designated Senior Indebtedness pursuant to which the maturity
thereof may be immediately accelerated, and upon receipt by the Trustee of
written notice (a "Payment Blockage Notice") from the holder or holders of
such Designated Senior Indebtedness or the trustee or agent acting on behalf
of such Designated Senior Indebtedness, then, unless and until such event of
default has been cured or waived or has ceased to exist or such Designated
Senior Indebtedness has been discharged or repaid in full in cash or the
benefits of these provisions have been waived by the holders of such
Designated Senior Indebtedness, no direct or indirect payment (excluding any
payment or distribution of Permitted Junior Securities) shall be made by or
on behalf of the Company of principal of or interest on the Securities,
except from those funds held in trust for the benefit of Holders of any
Securities pursuant to the procedures set forth in Article Eight hereof, to
such Holders, during a period (a "Payment Blockage Period") commencing on the
date of receipt of such notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the contrary,
(x) in no event shall a Payment Blockage Period extend beyond 179 days from
the date the Payment Blockage Notice in respect thereof was given, (y) there
shall be a period of at least 181 consecutive days in each 360-day period
when no Payment Blockage Period is in effect and (z) not more than one
Payment Blockage Period may be commenced with respect to the Securities
during any period of 360 consecutive days. No event of default that existed
or was continuing on the date of commencement of any Payment Blockage Period
with respect to the Designated Senior Indebtedness initiating such Payment
Blockage Period may be, or be made, the basis for the commencement of any
other Payment Blockage Period by the holder or holders of such Designated
Senior Indebtedness or the trustee or agent acting on behalf of such
Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such event of default has been cured or waived for a
period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by
Section 11.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that, upon notice from the Trustee to the
holders of Senior Indebtedness that such prohibited payment has been made,
the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing of the amounts
then due and owing on the Senior Indebtedness, if any, and only the amounts
specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
Section 11.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of the Company
of any kind or character, whether in cash, property or securities (excluding
any payment or distribution of Permitted Junior Securities), upon any
dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or other proceedings, all Senior Indebtedness shall first be paid in full in
cash before the Holders of the Securities or the Trustee on behalf of such
Holders shall be entitled to receive any payment by the Company of the
principal of or interest on the Securities, or any payment by the Company to
acquire any of the Securities for cash, property or securities, or any
distribution with respect to the Securities of any cash, property or
securities (excluding any payment or distribution of Permitted Junior
Securities). Before any payment may be made by, or on behalf of, the Company
of the principal of or interest on the Securities upon any such dissolution
or winding up or liquidation or reorganization, any payment or distribution
of assets or securities of the Company of any kind or character, whether in
cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities), to which the Holders of the Securities or the
Trustee on their behalf would be entitled, but for the subordination
provisions of this Indenture, shall be made by the Company or by any
receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, directly to the holders of the Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders) or their representatives or to
the trustee or trustees or agent or agents under any agreement or indenture
pursuant to which any of such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to pay all
such Senior Indebtedness in full in cash after giving effect to any prior or
concurrent payment, distribution or provision therefor to or for the holders
of such Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision prohibiting
such payment or distribution, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property
or securities (excluding any payment or distribution of Permitted Junior
Securities), shall be received by the Trustee or any Holder of Securities at
a time when such payment or distribution is prohibited by Section 11.03(a)
and before all obligations in respect of Senior Indebtedness are paid in full
in cash, or payment provided for, such payment or distribution shall be
received and held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such
holders) or their respective representatives, or to the trustee or trustees
or agent or agents under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear,
for application to the payment of Senior Indebtedness remaining unpaid until
all such Senior Indebtedness has been paid in full in cash after giving
effect to any prior or concurrent payment, distribution or provision therefor
to or for the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company with or
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five (or any replacement provisions as
contemplated by Article Five) shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 11.03 if such
other corporation shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions stated in Article Five (or any
replacement provisions as contemplated by Article Five).
Section 11.04. Subrogation.
Upon the payment in full of all Senior Indebtedness, or provision for
payment, the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company made on such Senior Indebtedness
until the principal of and interest on the Securities shall be paid in full
in cash; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee on their
behalf would be entitled except for the provisions of this Article Eleven,
and no payment over pursuant to the provisions of this Article Eleven to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee on
their behalf shall, as between the Company, its creditors other than holders
of Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article Eleven are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on
the other hand. If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article Eleven shall have been applied, pursuant to the provisions of this
Article Eleven, to the payment of all amounts payable under Senior
Indebtedness, then and in such case, the Holders of the Securities shall be
entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount required to make payment in full, or provision for payment, of
such Senior Indebtedness.
Section 11.05. Obligations of Company Unconditional.
Nothing contained in this Article Eleven or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company and
the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Holder of any Security or the Trustee
on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Eleven of the holders of the Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Without limiting the generality of the
foregoing, nothing contained in this Article Eleven shall restrict the right
of the Trustee or the Holders of Securities to take any action to declare the
Securities to be due and payable prior to their stated maturity pursuant to
Section 6.01 or to pursue any rights or remedies hereunder; provided,
however, that all Senior Indebtedness then due and payable shall first be
paid in full before the Holders of the Securities or the Trustee are entitled
to receive any direct or indirect payment from the Company of principal of or
interest on the Securities.
Section 11.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article Eleven. The Trustee shall not be charged with knowledge of the
existence of any event of default with respect to any Senior Indebtedness or
of any other facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee shall have received notice in
writing at its corporate trust office to that effect signed by an Officer of
the Company, or by a holder of Senior Indebtedness or trustee or agent
therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts
exist; provided that if the Trustee shall not have received the notice
provided for in this Section 11.06 at least two Business Days prior to the
date upon which by the terms of this Indenture any moneys shall become
payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Security), then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive any moneys from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 11.06 shall limit the right of the holders of
Senior Indebtedness to recover payments as contemplated by Section 11.03. The
Trustee shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself or itself to be a holder of any Senior
Indebtedness (or a trustee on behalf of, or other representative of, such
holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such
holder. In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Eleven, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article Eleven, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
Section 11.07. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets or securities referred to in
this Article Eleven, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the
Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Eleven.
Section 11.08. Trustee's Relation to Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Eleven with respect to any Senior Indebtedness which
may at any time be held by it in its individual or any other capacity to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights
as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eleven, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness (except as provided in Section 11.03(b)). The Trustee
shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company
or to any other person cash, property or securities to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article Eleven or
otherwise.
Section 11.09. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or
otherwise be charged with. The provisions of this Article Eleven are intended
to be for the benefit of, and shall be enforceable directly by, the holders
of Senior Indebtedness.
Section 11.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities.
Each Holder of Securities by its acceptance of such Securities
authorizes and expressly directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Eleven, and appoints the Trustee its attorney-in-
fact for such purposes, including, in the event of any dissolution, winding-
up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim
for the unpaid balance of its Securities in the form required in those
proceedings.
Section 11.11. This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article Eleven shall not be
construed as preventing the occurrence of an Event of Default specified in
clause (1) or (2) of Section 6.01.
Section 11.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article Eleven shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
Section 11.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 11.09, the holders
of Senior Indebtedness may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Eleven or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding or secured;
(b) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Indebtedness;
(c) release any Person liable in any manner for the collection of Senior
Indebtedness; and
(d) exercise or refrain from exercising any rights against the Company and
any other Person.
Section 11.14. Certain Payments May Be Paid Prior to Dissolution.
All money and United States government obligations properly deposited in
trust with the Trustee pursuant to and in accordance with Article Eight shall
be for the sole benefit of the Holders and shall not be subject to this
Article Eleven.
Nothing contained in this Article Eleven or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in
Section 11.02, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments
or from effecting a termination of the Company's obligations under the
Securities and this Indenture as provided in Article Eight, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of on and interest on the Securities to the
holders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have
received the written notice provided for in Section 11.02(b) or in Section
11.06. The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company.
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, all as of the date first above written.
Dated: ___________________, 1998
MACDERMID, INCORPORATED
By:
Name:
Title:
Dated: , 1998 [Trustee], as Trustee
By:
Name:
Title:
(SEAL)
EXHIBIT A
No. CUSIP No.: _______
[Title of Security]
MACDERMID, INCORPORATED, a Connecticut corporation, promises to pay to or
registered assigns the principal sum of __________________[Dollars]1 on
[Title of Security]
Interest Payment Dates: and
Record Dates: and
Authenticated:
Dated:
MacDermid, Incorporated (Seal)
By:
Title:
By:
Title: , as Trustee, certifies that this is one of the Securities
referred to in the within mentioned Indenture.
By:
Authorized Signatory
MACDERMID, INCORPORATED
[Title of Security]
1. INTEREST. MACDERMID, INCORPORATED (the "Company"), a Connecticut
corporation, promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay interest
semiannually on __________________ and ______________ of each year until the
principal is paid or made available for payment. Interest on the Securities
will accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid, from _______________, 19 ,
provided that, if there is no existing default in the payment of interest,
and if this Security is authenticated between a record date referred to on
the face hereof and the next succeeding interest payment date, interest shall
accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest, if any, which will be paid on such special
payment date to Holders of record on such special record date as may be fixed
by the Company) to the persons who are registered Holders of Securities at
the close of business on the [Insert record dates]. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, (the
"Trustee") will act as Paying Agent and Registrar. The Company may change or
appoint any Paying Agent, Registrar or co-Registrar without notice. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar or co-
Registrar.
4. INDENTURE. The Company issued the Securities under an Indenture dated as
of ______________, 1998 ("Indenture") between the Company and the Trustee.
The terms of the Securities include those stated in the Indenture (including
those terms set forth in the Authorizing Resolution or supplemental indenture
pertaining to the Securities of the Series of which this Security is a part)
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939 ("TIA") as in effect on the date of the Indenture. The Securities
are subject to all such terms, and Securityholders are referred to the
Indenture and the Act for a statement of them.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the applicable Authorizing
Resolution or supplemental indenture. Requests may be made to: MacDermid,
Incorporated, 245 Freight Street, Waterbury, Connecticut 06702, Attention:
Daniel Leever, President.
5. OPTIONAL REDEMPTION2. The Company may redeem the Securities at any time
on or after ______________, ____, in whole or in part, at the following
redemption prices (expressed as a percentage of their principal amount)
together with interest accrued and unpaid to the date fixed for redemption:
If redeemed during the Twelve-Month period Percentage commencing on
___________ and ending on ___________ in each of the following years [Insert
provisions relating to redemption at option of Holders, if any] Notice of
redemption will be mailed at least 30 days but not more than 60 days before
the redemption date to each Holder of Securities to be redeemed at his
registered address. Securities in denominations larger than $1,000 may be
redeemed in part. On and after the redemption date interest ceases to accrue
on Securities or portions of them called for redemption, provided that if the
Company shall default in the payment of such Security at the redemption price
together with accrued interest, interest shall continue to accrue at the rate
borne by the Securities.
6. MANDATORY REDEMPTION3. The Company shall redeem __% of the aggregate
principal amount of Securities originally issued under the Indenture on each
of _____, which redemptions are calculated to retire ____% of the Securities
originally issued prior to maturity. Such redemptions shall be made at a
redemption price equal to 100% of the principal amount thereof, together with
accrued interest to the redemption date. The Company may reduce the
principal amount of Securities to be redeemed pursuant to this Paragraph 6 by
the principal amount of any Securities previously redeemed, retired or
acquired, otherwise than pursuant to this Paragraph 6, that the Company has
delivered to the Trustee for cancellation and not previously credited to the
Company's obligations under this Paragraph 6. Each such Security shall be
received and credited for such purpose by the Trustee at the redemption price
and the amount of such mandatory redemption payment shall be reduced
accordingly.
7. DENOMINATIONS, TRANSFER, EXCHANGE4. The Securities are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Securities by presentation of such
Securities to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of
other denominations. The Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and to pay any
taxes and fees required by law or permitted by the Indenture. The Registrar
need not transfer or exchange any Security [Insert different or additional
denomination and multiples.]
Selected for redemption, except the unredeemed part thereof if the Security
is redeemed in part, or transfer or exchange any Securities for a period of
15 days before a selection of Securities to be redeemed. If applicable.
Insert different or additional denomination and multiples.
8. PERSONS DEEMED OWNERS. The registered Holder of this Security shall be
treated as the owner of it for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to
the money must look to the Company for payment unless an abandoned property
law designates another person.
10. AMENDMENT, SUPPLEMENT, WAIVER. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the outstanding
Securities of each Series affected by the amendment, and any past default or
compliance with any provision relating to any Series of the Securities may be
waived in a particular instance with the consent of the Holders of a majority
in principal amount of the outstanding Securities of such Series5 . Without
the consent of any Securityholder, the Company and the Trustee may amend or
supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities, to create a Series and establish its terms
or to make any other change, provided such action does not adversely affect
the rights of any Securityholder.
11. SUCCESSOR CORPORATION.6 When a successor corporation assumes all the
obligations of its predecessor under the Securities and the Indenture, the
predecessor corporation will be released from those obligations.
12. TRUSTEE DEALINGS WITH COMPANY.
________________________________, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its affiliates, and may otherwise
deal with the Company or its affiliates, as if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Securityholder by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
the issue of the Securities.
14. DISCHARGE OF INDENTURE. The Indenture contains certain provisions
pertaining to defeasance, which provisions shall for all purposes have the
same effect as if set forth herein.
15. AUTHENTICATION. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Securityholder 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).
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to ______________ (Insert
assignee's social security or tax ID number) (Print or type assignee's name,
address, and zip code) and irrevocably appoint ___________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for it.
Date:
Your signature:
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
EXHIBIT 4.1(c)
MACDERMID, INCORPORATED
SUBORDINATED DEBT SECURITIES
INDENTURE
DATED AS OF _______________, 1998
_________________, TRUSTEE
TABLE OF CONTENTS
ARTICLE ONE - DEFINITIONS AND INCORPORATION BY REFERENCE1
Section 1.1. Definitions1
Section 1.02. Other Definitions8
Section 1.03. Incorporation by Reference of Trust Indenture Act8
Section 1.04. Rules of Construction9
ARTICLE TWO - THE SECURITIES9
Section 2.01. Form and Dating9
Section 2.02. Execution and Authentication10
Section 2.03. Registrar and Paying Agent11
Section 2.04. Paying Agent to Hold Money in Trust11
Section 2.05. Securityholder Lists11
Section 2.06. Transfer and Exchange12
Section 2.07. Replacement Securities12
Section 2.08. Outstanding Securities13
Section 2.09. Temporary Securities13
Section 2.10. Cancellation13
Section 2.11. Defaulted Interest13
Section 2.12. Treasury Securities14
Section 2.13. CUSIP Numbers14
Section 2.14. Deposit of Moneys14
Section 2.15. Book-Entry Provisions for Global Security14
ARTICLE THREE - REDEMPTION15
Section 3.01. Notices to Trustee15
Section 3.02. Selection of Securities to be Redeemed16
Section 3.03. Notice of Redemption16
Section 3.04. Effect of Notice of Redemption17
Section 3.05. Deposit of Redemption Price17
Section 3.06. Securities Redeemed in Part17
ARTICLE FOUR - COVENANTS17
Section 4.01. Payment of Securities17
Section 4.02. Maintenance of Office or Agency17
Section 4.03. Compliance Certificate18
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
Maintenance of Properties18
ARTICLE FIVE - SUCCESSOR CORPORATION19
Section 5.01. When Company May Merge, etc.19
ARTICLE SIX - DEFAULTS AND REMEDIES19
Section 6.01. Events of Default19
Section 6.02. Acceleration21
Section 6.03. Other Remedies21
Section 6.04. Waiver of Existing Defaults22
Section 6.05. Control by Majority22
Section 6.06. Limitation on Suits22
Section 6.07. Rights of Holders to Receive Payment22
Section 6.08. Collection Suit by Trustee23
Section 6.09. Trustee May File Proofs of Claim23
Section 6.10. Priorities23
Section 6.11. Undertaking for Costs24
ARTICLE SEVEN - TRUSTEE24
Section 7.01. Duties of Trustee24
Section 7.02. Rights of Trustee25
Section 7.03. Individual Rights of Trustee26
Section 7.04. Trustee's Disclaimer26
Section 7.05. Notice of Defaults26
Section 7.06. Reports by Trustee to Holders26
Section 7.07. Compensation and Indemnity27
Section 7.08. Replacement of Trustee27
Section 7.09. Successor Trustee by Merger, etc.28
Section 7.10. Eligibility; Disqualification28
Section 7.11. Preferential Collection of Claims Against Company28
ARTICLE EIGHT - DISCHARGE OF INDENTURE28
Section 8.01. Defeasance upon Deposit of Moneys or U28
Section 8.02. Survival of the Company's Obligations31
Section 8.03. Application of Trust Money32
Section 8.04. Repayment to the Company32
Section 8.05. Reinstatement32
ARTICLE NINE - AMENDMENTS, SUPPLEMENTS AND WAIVERS32
Section 9.01. Without Consent of Holders32
Section 9.02. With Consent of Holders33
Section 9.03. Compliance with Trust Indenture Act34
Section 9.04. Revocation and Effect of Consents34
Section 9.05. Notation on or Exchange of Securities35
Section 9.06. Trustee to Sign Amendments, etc.35
ARTICLE TEN - MISCELLANEOUS35
Section 10.01. Trust Indenture Act Controls35
Section 10.02. Notices35
Section 10.03. Communications by Holders with Other Holders36
Section 10.04. Certificate and Opinion as to Conditions Precedent36
Section 10.05. Statements Required in Certificate or Opinion36
Section 10.06. Rules by Trustee and Agents37
Section 10.07. Legal Holidays37
Section 10.08. Governing Law37
Section 10.09. No Adverse Interpretation of Other Agreements37
Section 10.10. No Recourse Against Others37
Section 10.11. Successors and Assigns37
Section 10.12. Duplicate Originals38
Section 10.13. Severability38
ARTICLE ELEVEN - SUBORDINATION OF SECURITIES38
Section 11.01. Securities Subordinated to Senior Indebtedness38
Section 11.02. No Payment on Securities in Certain Circumstances38
Section 11.03. Payment Over of Proceeds upon Dissolution, etc.39
Section 11.04. Subrogation40
Section 11.05. Obligations of Company Unconditional41
Section 11.06. Notice to Trustee41
Section 11.07. Reliance on Judicial Order or Certificate of Liquidating
Agent42
Section 11.08. Trustee's Relation to Senior Indebtedness42
Section 11.09. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness43
Section 11.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities43
Section 11.11. This Article Not to Prevent Events of Default43
Section 11.12. Trustee's Compensation Not Prejudiced44
Section 11.13. No Waiver of Subordination Provisions44
Section 11.14. Certain Payments May Be Paid Prior to Dissolution44
SIGNATURES45
EXHIBIT A1
CROSS-REFERENCE TABLE
This Cross-Reference Table is not a part of the Indenture.
TIA Indenture Section
310(a)(1)7.10
(a)(2)7.10
(a)(3)N.A.
(a)(4)N.A.
(b)7.08; 7.10; 10.02
311(a).7.11
(b)7.11
(c)N.A.
312(a)2.05
(b)10.03
(c)10.03
313(a)7.06
(b)(1)N.A.
(b)(2)7.06
(c)10.02
(d)7.06
314(a)4.02; 10.02
(b)10.04
(c)(2)10.04
(c)(3)N.A.
(d)N.A.
(e)10.05
315(a)7.01(b)
(b)7.05; 10.02
(c)7.01(a)
(d)7.01(c)
(e)6.11 316(a)(last sentence) 10.06
(a)(1)(A)6.05
(a)(1)(B)6.04
(a)(2)N.A.
(b)6.07
317(a)(1)6.08
(a)(2)6.09
(b)2.04
318(a)10.01
N.A. means Not Applicable.
INDENTURE dated as of _________________, 1998, by and between MacDermid,
Incorporated, a Connecticut corporation (the "Company"), and ______________,
(the "Trustee"). Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
debt securities issued under this Indenture (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Affiliate" means, when used with reference to a specified person, any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Person specified.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notices and demands.
"Attributable Debt" means, with respect to any Capitalized Lease
Obligations, the capitalized amount thereof determined in accordance with
GAAP.
"Authorizing Resolution" means a resolution adopted by the Board of
Directors or by an Officer or committee of Officers pursuant to Board
delegation authorizing a Series of Securities.
"Bankruptcy Law" means title 11 of the United States Code, as amended,
or any similar federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of or in
such Person's capital stock or other equity interests, and options, rights or
warrants to purchase such capital stock or other equity interests, whether
now outstanding or issued after the applicable Issue Date, including, without
limitation, all Disqualified Stock and Preferred Stock.
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligations will be the capitalized amount thereof determined
in accordance with GAAP.
"Change of Control Provisions" has the meaning set forth in the
definition of "Disqualified Stock" below.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means the
successor.
"Currency Agreement" of any Person means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Subsidiaries against fluctuations in
currency values.
"Default" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means any Senior Indebtedness which, at
the time of determination, has an aggregate principal amount outstanding of
at least $___.0 million if the instrument governing such Senior Indebtedness
expressly states that such Indebtedness is "Designated Senior Indebtedness"
for purposes of this Indenture and a Board Resolution setting forth such
designation by the Company has been filed with the Trustee.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, on
or prior to the final maturity date of the Securities of the applicable
Series or (ii) is convertible into or exchangeable or exercisable for
(whether at the option of the issuer or the holder thereof) (a) debt
securities or (b) any Capital Stock referred to in (i) above, in each case,
at any time prior to the final maturity date of the Securities of the
applicable Series; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders
thereof (or the holders of any security into or for which such Capital Stock
is convertible, exchangeable or exercisable) the right to require the Company
to repurchase or redeem such Capital Stock upon the occurrence of a change in
control occurring prior to the final maturity date of the Securities of the
applicable Series shall not constitute Disqualified Stock if the change in
control provisions applicable to such Capital Stock are no more favorable to
such holders than any provisions described in the Authorizing Resolution or
supplemental indenture pertaining to the Securities of the applicable Series
("Change of Control Provisions") and such Capital Stock specifically provides
that the Company will not repurchase or redeem any such Capital Stock
pursuant to such provisions prior to the Company's repurchase of the
Securities of the applicable Series to the extent required pursuant to any
such Change of Control Provisions.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect on the date
of this Indenture.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (i) any
liability of such Person (a) for borrowed money or under any reimbursement
obligation relating to a letter of credit or other similar instruments (other
than standby letters of credit issued for the benefit of or surety,
performance, completion or payment bonds, earnest money notes or similar
purpose undertakings or indemnifications issued by, such Person in the
ordinary course of business), (b) evidenced by a bond, note, debenture or
similar instrument (including a purchase money obligation) given in
connection with the acquisition of any businesses, properties or assets of
any kind or with services incurred in connection with capital expenditures
(other than any obligation to pay a contingent purchase price which, as of
the date of incurrence thereof is not required to be re corded as a liability
in accordance with GAAP), or (c) in respect of Capitalized Lease Obligations
(to the extent of the Attributable Debt in respect thereof), (ii) any
Indebtedness of others that such Person has guaranteed to the extent of the
guarantee, (iii) to the extent not otherwise included, the obligations of
such Person under Currency Agreements or Interest Protection Agreements to
the extent recorded as liabilities not constituting Interest Incurred, net of
amounts recorded as assets in respect of such agreements, in accordance with
GAAP, and (iv) all Indebtedness of others secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
provided, that Indebtedness shall not include accounts payable, liabilities
to trade creditors of such Person or other accrued expenses arising in the
ordinary course of business. The amount of Indebtedness of any Person at any
date shall be (a) the outstanding balance at such date of all unconditional
obligations as described above, net of any unamortized discount to be
accounted for as Interest Expense, in accordance with GAAP, (b) the maximum
liability of such Person for any contingent obligations under clause (ii)
above at such date, net of, any unamortized discount to be accounted for as
Interest Expense in accordance with GAAP and (c) in the case of clause (iv)
above, the lesser of (1) the fair market value of any asset subject to a Lien
securing the Indebtedness of others on the date that the Lien attaches and
(2) the amount of the Indebtedness secured.
"Indenture" means this Indenture as amended or supplemented from time to
time, including pursuant to any Authorizing Resolution or supplemental
indenture pertaining to any Series.
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency, receivership or similar proceeding
with respect to such Person, whether voluntary or involuntary.
"Interest Expense" of any Person for any period means, without
duplication, the aggregate amount of (i) interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like
caption on an income statement for such Person (including, without
limitation, imputed interest included in Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owned with respect to
letters of credit and bankers' acceptance financing, the net costs (but
reduced by net gains) associated with Currency Agreements and Interest
Protection Agreements, amortization of other financing fees and expenses, the
interest portion of any deferred payment obligation, amortization of discount
or premium, if any, and all other noncash interest expense other than
interest and other charges amortized to cost of sales), and (ii) all interest
actually paid by the Company or a Restricted Subsidiary under any guarantee
of Indebtedness (including, without limitation, a guarantee of principal,
interest or any combination thereof) of any Person other than the Company or
any Restricted Subsidiary during such period; provided, that Interest Expense
shall exclude any expense associated with the complete write-off of financing
fees and expenses in connection with the repayment of any Indebtedness.
"Interest Protection Agreement" of any Person means any interest rate
swap agreement, interest rate collar agreement, option or futures contract or
other similar agreement or arrangement designed to protect such Person or any
of its Subsidiaries against fluctuations in interest rates with respect to
Indebtedness permitted to be incurred under this Indenture.
"Investments" of any Person means (i) all investments by such Person in
any other Person in the form of loans, advances or capital contributions,
(ii) all guarantees of Indebtedness or other obligations of any other Person
by such person, (iii) all purchases (or other acquisitions for consideration)
by such Person of Indebtedness, Capital Stock or other securities of any
other Person and (iv) all other items that would be classified as investments
in any other Person (including, without limitation, purchases of assets
outside the ordinary course of business) on a balance sheet of such Person
prepared in accordance with GAAP.
"Issue Date" means, with respect to any Series of Securities, the date
on which the Securities of such Series are originally issued under this
Indenture.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this definition, a Person shall be deemed to own,
subject to a Lien, any Property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"Non-Recourse Indebtedness" with respect to any Person means
Indebtedness of such Person for which (i) the sole legal recourse for
collection of principal and interest on such Indebtedness is against the
specific property identified in the instruments evidencing or securing such
Indebtedness and such property was acquired with the proceeds of such
Indebtedness or such Indebtedness was incurred within 90 days after the
acquisition of such property and (ii) no other assets of such Person may be
realized upon in collection of principal or interest on such Indebtedness.
Indebtedness which is otherwise Non-Recourse Indebtedness will not lose its
character as Non-Recourse Indebtedness because there is recourse to the
borrower, any guarantor or any other Person for (i) environmental warranties
and indemnities, or (ii) indemnities for and liabilities arising from fraud,
misrepresentation, misapplication or non-payment of rents, profits, insurance
and condemnation proceeds and other sums actually received by the borrower
from secured assets to be paid to the lender, waste and mechanics' liens.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Controller or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by
an Officer and an Assistant Treasurer or an Assistant Secretary of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Junior Securities" means any securities of the Company or any
other Person that are (i) equity securities or (ii) subordinated in right of
payment to all Senior Indebtedness that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the Securities
are subordinated as provided in this Indenture, in any event pursuant to a
court order so providing and as to which (a) the rate of interest on such
securities shall not exceed the effective rate of interest on the Securities
on the date of this Indenture, (b) such securities shall not be entitled to
the benefits of covenants or defaults materially more beneficial to the
holders of such securities than those in effect with respect to the
Securities on the date of this Indenture and (c) such securities shall not
provide for amortization (including sinking fund and mandatory prepayment
provisions) commencing prior to the date six months following the final
scheduled maturity date of the Senior Indebtedness (as modified by the plan
of reorganization or readjustment pursuant to which such securities are
issued).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Post-Petition Interest" means, with respect to any Senior Indebtedness
of any Person, all interest accrued or accruing on such Indebtedness after
the commencement of any Insolvency or Liquidation Proceeding against such
Person in accordance with and at the contract rate (including, without
limitation, any rate applicable upon default) specified in the agreement or
instrument creating, evidencing or governing such Indebtedness, whether or
not, pursuant to applicable law or otherwise, the claim for such interest is
allowed as a claim in such Insolvency or Liquidation Proceeding.
"Preferred Stock" of any Person means all Capital Stock of such Person
which has a preference in liquidation or with respect to the payment of
dividends.
"Principal" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person, whether or not included in
the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Restricted Subsidiary" means any Subsidiary of the Company which is not
an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission or any successor
agency performing the duties now assigned to it under the TIA.
"Securities" means any Securities that are issued under this Indenture.
"Senior Indebtedness" means, at any date, (a) all Indebtedness of the
Company for borrowed money, including principal, premium, if any, and
interest (including Post-Petition Interest) on such Indebtedness, unless the
instrument under which such Indebtedness of the Company for money borrowed is
incurred expressly provides that such Indebtedness for money borrowed is not
senior or superior in right of payment to the Securities of the applicable
Series, and all renewals, extensions, modifications, amendments or
refinancings thereof; (b) all obligations of the Company under Interest
Protection Agreements, and (c) all obligations of the Company under Currency
Agreements. Notwithstanding the foregoing, Senior Indebtedness shall not
include (a) to the extent that it may constitute Indebtedness, any obligation
for federal, state, local or other taxes; (b) any Indebtedness between the
Company and any Subsidiary of the Company; (c) to the extent that it may
constitute Indebtedness, any obligation in respect of any trade payable
incurred for the purchase of goods or materials, or for services obtained, in
the ordinary course of business; (d) that portion of any Indebtedness that is
incurred in violation of this Indenture; (e) Indebtedness evidenced by the
Securities; (f) Indebtedness of the Company that is expressly subordinate or
junior in right of payment to any other Indebtedness of the Company; (g) to
the extent that it may constitute Indebtedness, any obligation owing under
leases (other than Capitalized Lease Obligations); and (h) any obligation
that by operation of law is subordinate to any general unsecured obligations
of the Company.
"Series" means a series of Securities established under this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which would
constitute a "significant subsidiary" as defined in Rule 1.02 of Regulation
S-X under the Securities Act and the Exchange Act.
"Subsidiary" of any Person means any corporation or other entity of
which a majority of the Capital Stock having ordinary voting power to elect a
majority of the Board of Directors or other persons performing similar
functions is at the time directly or indirectly owned or controlled by such
Person.
"TIA" means the Trust Indenture Act of 1939, as in effect from time to
time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor serving hereunder.
"Trust Officer" means the Chairman of the Board, the President, any Vice
President or any other officer or assistant officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
"U.S. government obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation
by the United States, which, in either case are not callable or redeemable at
the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank or trust company as custodian with respect to any such U.S.
government obligations or a specific payment of interest on or principal of
any such U.S. government obligation held by such custodian for the account of
the holder of a depositary receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the U.S. government obligation or the specific
payment of interest on or principal of the U.S. government obligation
evidenced by such depositary receipt.
"Unrestricted Subsidiary" means any Subsidiary of the Company so
designated by a resolution adopted by the Board of Directors of the Company
as provided below; provided that (a) the holders of Indebtedness thereof do
not have direct or indirect recourse against the Company or any Restricted
Subsidiary, and neither the Company nor any Restricted Subsidiary otherwise
has liability, for any payment obligations in respect of such Indebtedness
(including any undertaking, agreement or instrument evidencing such
Indebtedness), except, (i) in each case, to the extent that the amount
thereof constitutes a "restricted payment" permitted to be made under any
provisions set forth limiting the making or paying of a "restricted payment"
under the Authorizing Resolution or supplemental indenture pertaining to an
applicable Series ("Restricted Payment Provisions"), (ii) in the case of Non-
Recourse Indebtedness, to the extent such recourse or liability is for the
matters discussed in the last sentence of the definition of "Non-Recourse
Indebtedness," or (iii) to the extent such Indebtedness is a guarantee by
such Subsidiary of Indebtedness of the Company or a Restricted Subsidiary and
(b) no holder of any Indebtedness of such Subsidiary shall have a right to
declare a default on such Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity as a result of a default
on any Indebtedness of the Company or any Restricted Subsidiary. Subject to
the foregoing, the Board of Directors of the Company may designate any
Subsidiary to be an Unrestricted Subsidiary; provided, however, that (i) the
net amount (the "Designation Amount") then outstanding of all previous
Investments by the Company and the Restricted Subsidiaries in such Subsidiary
will be deemed to be a "restricted payment" pursuant to any Restricted
Payment Provisions at the time of such designation and will reduce the amount
available for other restricted payments under any Restricted Payment
Provisions, to the extent provided therein, (ii) the Company must be
permitted under any Restricted Payment Provisions to make the "restricted
payment" deemed to have been made pursuant to clause (i), and (iii) after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing. The Board of Directors of the Company may also
redesignate an Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that (i) the Indebtedness of such Unrestricted Subsidiary
as of the date of such redesignation could then be incurred under any
provisions set forth limiting the incurrence of Indebtedness under the
Authorizing Resolution or supplemental indenture pertaining to an applicable
Series ("Debt Limitation Provisions"), (ii) immediately after giving effect
to such redesignation and the incurrence of any such additional Indebtedness,
the Company and the Restricted Subsidiaries could incur $1.00 of additional
Indebtedness under any debt incurrence covenant ratio set forth in any Debt
Limitation Provisions and (iii) the Liens of such Unrestricted Subsidiary as
of the date of such redesignation could then be incurred in accordance with
any provisions set forth limiting the creation or existence of Liens under
the Authorizing Resolution or supplemental indenture pertaining to an
applicable Series ("Lien Limitation Provisions"). Any such designation or
redesignation by the Board of Directors of the Company will be evidenced to
the Trustee by the filing with the Trustee of a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation or redesignation and an Officers' Certificate certifying that
such designation or redesignation complied with the foregoing conditions and
setting forth the underlying calculations of such Officers' Certificate. The
designation of any Person as an Unrestricted Subsidiary shall be deemed to
include a designation of all Subsidiaries of such Person as Unrestricted
Subsidiaries; provided, however, that the ownership of the general
partnership interest or a similar member's interest in a limited liability
company by an Unrestricted Subsidiary shall not cause a Subsidiary of the
Company of which more than 95% of the equity interest is held by the Company
or one or more Restricted Subsidiaries to be deemed an Unrestricted
Subsidiary.
Section 1.02. Other Definitions.
TermDefined in Section
"Agent Members" 2.15
"Business Day" 11.07
"Custodian" 6.01
"Depository" 2.15
"Event of "Default" 6.01
"Legal Holiday" 11.07
"Paying "Agent" 2.03
"Registrar" 2.03
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture securities" means the Securities.
"Indenture security holder" means a Securityholder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the Trustee.
"Obligor" on the indenture securities means the Company, or any other obligor
on the Securities of a Series.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
THE SECURITIES
Section 2.01. Form and Dating.
The aggregate principal amount of Securities that may be issued under
this Indenture is unlimited. The Securities may be issued from time to time
in one or more Series. Each Series shall be created by an Authorizing
Resolution or a supplemental indenture that establishes the terms of the
Series, which may include the following:
(1) the title of the Series;
(2) the aggregate principal amount (or any limit on the aggregate
principal amount) of the Series and, if any Securities of a Series are to be
issued at a discount from their face amount, the method of computing the
accretion of such discount;
(3) the interest rate or method of calculation of the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Securities of the Series;
(6) the dates when, places where and manner in which principal and
interest are payable;
(7) the Registrar and Paying Agent;
(8) the terms of any mandatory (including any sinking fund
requirements) or optional redemption by the Company;
(9) the terms of any redemption at the option of Holders;
(10) the denominations in which Securities are issuable;
(11) whether Securities will be issued in registered or bearer form and
the terms of any such forms of Securities;
(12) whether any Securities will be represented by a global Security and
the terms of any such global Security;
(13) the currency or currencies (including any composite currency) in
which principal or interest or both may be paid;
(14) if payments of principal or interest may be made in a currency
other than that in which Securities are denominated, the manner for
determining such payments;
(15) provisions for electronic issuance of Securities or issuance of
Securities in uncertificated form;
(16) any Events of Default, covenants and/or defined terms in addition
to or in lieu of those set forth in this Indenture;
(17) whether and upon what terms Securities may be defeased if different
from the provisions set forth in this Indenture;
(18) the form of the Securities, which, unless the Authorizing
Resolution or supplemental indenture otherwise provides, shall be
in the form of Exhibit A;
(19) any terms that may be required by or advisable under applicable
law;
(20) the percentage of the principal amount of the Securities which is
payable if the maturity of the Securities is accelerated in the
case of Securities issued at a discount from their face amount;
(21) whether any Securities will have guarantees; and
(22) any other terms in addition to or different from those contained in
this Indenture.
All Securities of one Series need not be issued at the same time and,
unless otherwise provided, a Series may be reopened for issuances of
additional Securities of such Series pursuant to an Authorizing Resolution,
an Officers' Certificate or in any indenture supplemental hereto. The
creation and issuance of a Series and the authentication and delivery thereof
are not subject to any conditions precedent.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue upon
receipt of an Officers' Certificate of the Company. Each Security shall be
dated the date of its authentication.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an
office or agency where Securities may be presented for payment ("Paying
Agent") and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent and the Trustee shall have the right to inspect the Securities register
at all reasonable times to obtain copies thereof, and the Trustee shall have
the right to rely upon such register as to the names and addresses of the
Holders and the principal amounts and certificate numbers thereof. If the
Company fails to maintain a Registrar or Paying Agent or fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of Securityholders
and the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities, and shall notify the Trustee of
any default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon doing so the Paying Agent
shall have no further liability for the money.
Section 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least 7 Business Days before each semiannual
interest payment date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders.
Section 2.06. Transfer and Exchange.
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the New York Uniform
Commercial Code are met. Where Securities are presented to the Registrar or
a co-Registrar with a request to exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall make the exchange
as requested if the same requirements are met. To permit transfers and
exchanges, the Trustee shall authenticate Securities at the Registrar's
request. The Registrar need not transfer or exchange any Security selected
for redemption, except the unredeemed part thereof if the Security is
redeemed in part, or transfer or exchange any Securities for a period of 15
days before a selection of Securities to be redeemed. Any exchange or
transfer shall be without charge, except that the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto except in the case of exchanges pursuant to 2.09,
3.06 or 9.05 not involving any transfer.
Any Holder of a global Security shall, by acceptance of such global
Security, agree that transfers of beneficial interests in such global
Security may be effected only through a book entry system maintained by the
Holder of such global Security (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a
book entry.
Section 2.07. Replacement Securities.
If the Holder of a Security claims that the Security has been lost,
destroyed, mutilated or wrongfully taken, the Company shall issue and, upon
written request of any Officer of the Company, the Trustee shall authenticate
a replacement Security, provided in the case of a lost, destroyed or
wrongfully taken Security, that the requirements of Section 8-405 of the New
York Uniform Commercial Code are met. If any such lost, destroyed, mutilated
or wrongfully taken Security shall have matured or shall be about to mature,
the Company may, instead of issuing a substitute Security therefor, pay such
Security without requiring (except in the case of a mutilated Security) the
surrender thereof. An indemnity bond must be sufficient in the judgment of
the Company and the Trustee to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Security is replaced,
including the acquisition of such Security by a bona fide purchaser. The
Company or the Trustee may charge for its expenses in replacing a Security.
Section 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those canceled by it and those described in this
Section. A Security does not cease to be outstanding because the Company or
one of its Affiliates holds the Security. If a Security is replaced pursuant
to Section 2.07, it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser. If the Paying Agent holds on a redemption date or maturity date
money sufficient to pay Securities payable on that date, then on and after
that date such Securities cease to be outstanding and interest on them ceases
to accrue.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 2.09. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but
may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and, upon
surrender for cancellation of the temporary Security, the Company shall
execute and the Trustee shall authenticate definitive Securities in exchange
for temporary Securities. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.
Section 2.10. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange,
redemption or payment. The Trustee and no one else shall cancel and destroy,
or retain in accordance with its standard retention policy, all Securities
surrendered for registration or transfer, exchange, redemption, paying or
cancellation. Unless the Authorizing Resolution so provides, the Company may
not issue new Securities to replace Securities that it has previously paid or
delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest plus any interest payable on the defaulted
interest to the persons who are Securityholders on a subsequent special
record date. The Company shall fix such special record date and a payment
date which shall be reasonably satisfactory to the Trustee. At least 15 days
before such special record date, the Company shall mail to each
Securityholder a notice that states the record date, the payment date and the
amount of defaulted interest to be paid. On or before the date such notice
is mailed, the Company shall deposit with the Paying Agent money sufficient
to pay the amount of defaulted interest to be so paid. The Company may pay
defaulted interest in any other lawful manner if, after notice given by the
Company to the Trustee of the proposed payment, such manner of payment shall
be deemed practicable by the Trustee.
Section 2.12. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any direction, waiver, consent or
notice, Securities owned by the Company or any of its Affiliates shall be
considered as though they are not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee actually
knows are so owned shall be so considered.
Section 2.13. CUSIP Numbers.
The Company in issuing the Securities of any Series may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such Securities;
provided that no representation is hereby deemed to be made by the Trustee as
to the correctness or accuracy of any such CUSIP number printed in the notice
or on such Securities, and that reliance may be placed only on the other
identification numbers printed on such Securities. The Company shall
promptly notify the Trustee of any change in any CUSIP number.
Section 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each interest payment date and
maturity date with respect to each Series of Securities, the Company shall
have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments due on such interest payment date or
maturity date, as the case may be, in a timely manner which permits the
Paying Agent to remit payment to the Holders on such interest payment date or
maturity date, as the case may be.
Section 2.15. Book-Entry Provisions for Global Security.
(a) Any global Security of a Series initially shall (i) be
registered in the name of the depository who shall be identified in the
Authorizing Resolution or supplemental indenture relating to such Securities
(the "Depository") or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear any required
legends. Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner
of the global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of any global Security shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the global Security
may be transferred or exchanged for definitive Securities in accordance with
the rules and procedures of the Depository. In addition, definitive
Securities shall be transferred to all beneficial owners in exchange for
their beneficial interests in a global Security if (i) the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for the global Security and a successor depository is not appointed by the
Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depository to issue definitive Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more definitive Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of the global Security in an amount equal to the principal
amount of the beneficial interest in the global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more definitive Securities of like tenor and amount.
(d) In connection with the transfer of an entire global Security to
beneficial owners pursuant to paragraph (b), the global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the global Security, an equal aggregate principal amount of
definitive Securities of authorized denominations.
(e) The Holder of any global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities of such Series.
ARTICLE THREE
REDEMPTION
Section 3.01. Notices to Trustee.
Securities of a Series that are redeemable prior to maturity shall be
redeemable in accordance with their terms and, unless the Authorizing
Resolution or supplemental indenture provides otherwise, in accordance with
this Article.
If the Company wants to redeem Securities pursuant to Paragraph 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Securities to be redeemed. Any such notice may be
canceled at any time prior to notice of such redemption being mailed to
Holders. Any such canceled notice shall be void and of no effect. If the
Company wants to credit any Securities previously redeemed, retired or
acquired against any redemption pursuant to Paragraph 6 of the Securities, it
shall notify the Trustee of the amount of the credit and it shall deliver any
Securities not previously delivered to the Trustee for cancellation with such
notice.
The Company shall give each notice provided for in this Section 3.01 at
least 30 days before the notice of any such redemption is to be mailed to
Holders (unless a shorter notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Securities to be Redeemed.
If fewer than all of the Securities of a Series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities outstanding not previously called for redemption and shall
promptly notify the Company of the serial numbers or other identifying
attributes of the Securities so selected. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than the minimum denomination for the Series. Securities and portions
of them it selects shall be in amounts equal to the minimum denomination for
the Series or an integral multiple thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed. The notice shall
identify the Securities to be redeemed and shall state: (1) the redemption
date; (2) the redemption price; (3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the Paying
Agent to collect the redemption price; (5) that interest on Securities called
for redemption ceases to accrue on and after the redemption date; and (6)
that the Securities are being redeemed pursuant to the mandatory redemption
or the optional redemption provisions, as applicable. At the Company's
request, the Trustee shall give the notice of redemption in the Company's
name and at its expense; provided, however, that the Company shall deliver to
the Trustee at least 15 days prior to the date on which notice of redemption
is to be mailed or such shorter period as may be satisfactory to the Trustee,
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price as
set forth in the notice of redemption. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price, plus accrued interest
to the redemption date.
Section 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent immediately available funds sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for each Holder a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a Series on the
dates and in the manner provided in the Securities of the Series. An
installment of principal or interest shall be considered paid on the date it
is due if the Paying Agent holds on that date money designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue principal at the rate borne by
the Series; it shall pay interest on overdue installments of interest at the
same rate.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee.
Section 4.03. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether
or not the signers know of any Default by the Company in performing any of
its obligations under this Indenture. If they do know of such a Default, the
certificate shall describe the Default.
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
Maintenance of Properties.
The Company will:
(a) cause to be paid and discharged all lawful taxes, assessments
and governmental charges or levies imposed upon the Company and its
Restricted Subsidiaries or upon the income or profits of the Company and its
Restricted Subsidiaries or upon property or any part thereof belonging to the
Company and its Restricted Subsidiaries before the same shall be in default,
as well as all lawful claims for labor, materials and supplies which, if
unpaid, might become a lien or charge upon such property or any part thereof;
provided, however, that the Company shall not be required to cause to be paid
or discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the nonpayment thereof does not, in the judgment of the
Company, materially adversely affect the ability of the Company and the
Restricted Subsidiaries to pay all obligations under the Indenture when due;
and provided further that the Company shall not be required to cause to be
paid or discharged any such tax, assessment, charge, levy or claim if, in the
judgment of the Company, such payment shall not be advantageous to the
Company in the conduct of its business and if the failure so to pay or
discharge does not, in its judgment, materially adversely affect the ability
of the Company and the Restricted Subsidiaries to pay all obligations under
this Indenture when due;
(b) cause to be done all things necessary to preserve and keep in
full force and effect the corporate existence of the Company and each of its
Restricted Subsidiaries and to comply with all applicable laws; provided,
however, that nothing in this subsection (b) shall prevent a consolidation or
merger of the Company or any Restricted Subsidiary not prohibited by the
provisions of Article Five or any other provision or the Authorizing
Resolution or supplemental indenture pertaining to a Series, and the Company
need not maintain the corporate existence of an immaterial Restricted
Subsidiary; and
(c) at all times keep, maintain and preserve all the property of
the Company and the Restricted Subsidiaries in good repair, working order and
condition (reasonable wear and tear excepted) and from time to time make all
needful and proper repairs, renewals, replacements, betterments and
improvements thereto, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided, however,
that nothing in this subsection (c) shall prevent the Company from
discontinuing the operation and maintenance of any such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of its business and not disadvantageous in any material respect to the
ability of the Company and the Restricted Subsidiaries to pay all obligations
under this Indenture when due.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge with or into, any other
corporation, or transfer all or substantially all of its assets to, any
entity unless permitted by law and unless (1) the resulting, surviving or
transferee entity, which shall be a corporation organized and existing under
the laws of the United States or a State thereof, assumes by supplemental
indenture, in a form reasonably satisfactory to the Trustee, all of the
obligations of the Company under the Securities and this Indenture and (2)
immediately after giving effect to, and as a result of, such transaction, no
Default or Event of Default shall have occurred and be continuing.
Thereafter such successor corporation or corporations shall succeed to and be
substituted for the Company with the same effect as if it had been named
herein as the "Company" and all such obligations of the predecessor
corporation shall terminate. The Company shall deliver to the Trustee prior
to the consummation of the proposed transaction an Officers' Certificate to
the foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture. To
the extent that an Authorizing Resolution or supplemental indenture
pertaining to any Series provides for different provisions relating to the
subject matter of this Article Five, the provisions in such Authorizing
Resolution or supplemental indenture shall govern for purposes of such
Series.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" on a Series occurs if, voluntarily or
involuntarily, whether by operation of law or otherwise, any of the following
occurs:
(1) the failure by the Company to pay interest on any Security of
such Series when the same becomes due and payable and the continuance of any
such failure for a period of 30 days, whether or not such payment is
prohibited by Article Eleven hereof;
(2) the failure by the Company to pay the principal or premium of
any Security of such Series when the same becomes due and payable at
maturity, upon acceleration or otherwise, whether or not such payment is
prohibited by Article Eleven hereof;
(3) the failure by the Company or any Restricted Subsidiary to
comply with any of its agreements or covenants in, or provisions of, the
Securities of such Series or this Indenture (as they relate thereto) and such
failure continues for the period and after the notice specified below (except
in the case of a default with respect to any Change of Control Provisions or
Article Five (or any replacement provisions as contemplated by Article Five),
which will constitute Events of Default with notice but without passage of
time);
(4) the acceleration of any Indebtedness (other than Non-Recourse
Indebtedness) of the Company or any Restricted Subsidiary in an amount of
$___ million or more, individually or in the aggregate, and such acceleration
does not cease to exist, or such Indebtedness is not satisfied, in either
case within five days after such acceleration;
(5) the failure by the Company or any Restricted Subsidiary to make
any principal or interest payment in an amount of $___ million or more,
individually or in the aggregate, in respect of Indebtedness (other than Non-
Resource Indebtedness) of the Company or any Restricted Subsidiary within
five days of such principal or interest becoming due and payable (after
giving effect to any applicable grace period set forth in the documents
governing such Indebtedness);
(6) a final judgment or judgments in an amount of $___ million or
more, individually or in the aggregate, for the payment of money having been
entered by a court or courts of competent jurisdiction against the Company or
any of its Restricted Subsidiaries and such judgment or judgments is not
satisfied, stayed, annulled or rescinded within 60 days of being entered;
(7) the Company or any Restricted Subsidiary that is a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case, (B) consents to the entry of an order for
relief against it in an involuntary case, (C) consents to the appointment of
a Custodian of it or for all or substantially all of its property, or (D)
makes a general assignment for the benefit of its creditors; or
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted Subsidiary that
is a Significant Subsidiary as debtor in an involuntary case,
(B) appoints a Custodian of the Company or any Restricted Subsidiary that is
a Significant Subsidiary or a Custodian for all or substantially all of the
property of the Company or any Restricted Subsidiary that is a Significant
Subsidiary, or
(C) orders the liquidation of the Company or any Restricted Subsidiary that
is a Significant Subsidiary, and the order or decree remains unstayed and in
effect for 60 days.
A Default as described in sub-clause (3) above will not be deemed an
Event of Default until the Trustee notifies the Company, or the Holders of at
least 25 percent in principal amount of the then outstanding Securities of
the applicable Series notify the Company and the Trustee, of the Default and
(except in the case of a default with respect to any Change of Control
Provisions or Article Five (or any replacement provisions as contemplated by
Article Five) the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." If such a
Default is cured within such time period, it ceases. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Company resulting from sub-clauses (7) or (8) above) shall have occurred
and be continuing under the Indenture, the Trustee by notice to the Company,
or the Holders of at least 25 percent in principal amount of the Securities
of the applicable Series then outstanding by notice to the Company and the
Trustee, may declare all Securities of such Series to be due and payable
immediately. Upon such declaration of acceleration, the amounts due and
payable on the Securities of such Series will be due and payable immediately.
If an Event of Default with respect to the Company specified in sub-clauses
(7) or (8) above occurs, all amounts due and payable on the Securities of
such Series will ipso facto become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee and the
Company or any Holder. The Holders of a majority in principal amount of the
Securities of such Series then outstanding by written notice to the Trustee
and the Company may waive any Default or Event of Default (other than any
continuing Default or Event of Default in payment of principal or interest)
with respect to such Series of Securities under the Indenture. Holders of a
majority in principal amount of the then outstanding Securities of such
Series may rescind an acceleration with respect to such Series and its
consequence (except an acceleration due to nonpayment of principal or
interest on the Securities of such Series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
No such rescission shall extend to or shall affect any subsequent Event
of Default, or shall impair any right or power consequent thereon.
Section 6.03. Other Remedies.
If an Event of Default on a Series occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Series or to enforce the
performance of any provision in the Securities or this Indenture applicable
to the Series.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Existing Defaults.
Subject to Section 9.02, the Holders of a majority in principal amount
of the outstanding Securities of a Series on behalf of all the Holders of the
Series by notice to the Trustee may waive an existing Default on such Series
and its consequences. When a Default is waived, it is cured and stops
continuing, and any Event of Default arising therefrom shall be deemed to
have been cured; but no such waiver shall 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 principal amount of the outstanding
Securities of a Series 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 it with respect to such Series. The Trustee,
however, may refuse to follow any direction (i) that conflicts with law or
this Indenture, (ii) that, subject to Section 7.01, the Trustee determines is
unduly prejudicial to the rights of other Securityholders, (iii) that would
involve the Trustee in personal liability or (iv) if the Trustee shall not
have been provided with indemnity satisfactory to it.
Section 6.06. Limitation on Suits.
A Securityholder of a Series may not pursue any remedy with respect to
this Indenture or the Series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default on the Series;
(2) the Holders of at least a majority in principal amount of the
outstanding Securities of the Series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) no written request inconsistent with such written request shall
have been given to the Trustee pursuant to this Section 6.06. A
Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal and interest remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property, and unless prohibited by applicable law or regulation, may vote
on behalf of the Holders in any election of a Custodian, and shall be
entitled and empowered to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same and any
Custodian in any such judicial proceeding is hereby authorized by each
Securityholder to make such payments to the Trustee. Nothing herein shall be
deemed to authorize the Trustee to authorize or consent to or vote for or
accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder or to authorize the Trustee to vote in respect of the claim of
any Securityholder except as aforesaid for the election of the Custodian.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders of the Series for amounts due and unpaid on
the Series for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Series
for principal and interest, respectively; and
Third: to the Company as its interests may appear.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
the due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than
10% in principal amount of the Series.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall, prior to the receipt of directions from the Holders of a majority in
principal amount of the Securities, exercise its rights and powers 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. The
Trustee, however, shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture but need
not confirm or investigate the accuracy of mathematical calculations or other
facts or matters stated therein.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 or any other direction of the Holders
permitted hereunder.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
(g) None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if there shall be reasonable grounds for believing
that the repayment of such funds or adequate indemnity against such liability
is not reasonably assured to it.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting on any document, resolution, certificate, instrument, report, or
direction 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, resolution, certificate, instrument, report, or
direction.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both, which shall conform
to Sections 10.04 and 10.05 hereof and containing such other statements as
the Trustee reasonably deems necessary to perform its duties hereunder. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on the Officers' Certificate, Opinion of Counsel or any
other direction of the Company permitted hereunder.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel, and the written advice of such
counsel or any Opinion of Counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, omitted
or suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(f) Unless otherwise specifically provided in the Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed
by an Officer of the Company.
(g) For all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Event of Default (other than under
Section 6.01(1) or 6.01(2)) unless a Trust Officer assigned to and working in
the Trustee's corporate trust office has actual knowledge thereof or unless
written notice of any Event of Default is received by the Trustee at its
address specified in Section 10.02 hereof and such notice references the
Securities generally, the Company or this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or its
affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee, however, must comply
with Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture, the Securities or of any prospectus used to sell the
Securities; it shall not be accountable for the Company's use of the proceeds
from the Securities; it shall not be accountable for any money paid to the
Company, or upon the Company's direction, if made under and in accordance
with any provision of this Indenture; it shall not be responsible for the use
or application of any money received by any Paying Agent other than the
Trustee; and it shall not be responsible for any statement of the Company in
this Indenture or in the Securities other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default on a Series occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Securityholder of the Series
notice of the Default (which shall specify any uncured Default known to it)
within 90 days after it occurs. Except in the case of a default in payment
of principal of or interest on a Series, the Trustee may withhold the notice
if and so long as the board of directors of the Trustee, the executive or any
trust committee of such directors and/or responsible officers of the Trustee
in good faith determine(s) that withholding the notice is in the interests of
Holders of the Series.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to each Securityholder a
brief report dated as of such May 15 that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(2) has occurred within the
twelve months preceding the reporting date no report need be transmitted).
The Trustee also shall comply with TIA Section 313(b). A copy of each report
at the time of its mailing to Securityholders shall be delivered to the
Company and filed by the Trustee with the SEC and each national securities
exchange on which the Securities are listed. The Company agrees to notify
the Trustee of each national securities exchange on which the Securities are
listed.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee or predecessor trustee from time to
time reasonable compensation for their respective services subject to any
written agreement between the Trustee and the Company. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel. The Company shall indemnify
the Trustee and each predecessor trustee, its officers, directors, employees
and agents and hold it harmless against any loss, liability or expense
incurred or made by or on behalf of it in connection with the administration
of this Indenture or the trust hereunder and its duties hereunder including
the costs and expenses of defending itself against or investigating any claim
in the premises. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
the Trustee's, or its officers', directors', employees' or agents' negligence
or bad faith. To ensure the Company's payment obligations in this Section,
the Trustee shall have a claim prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal of or interest on particular Securities. When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 6.01 or in connection with Article 6 hereof, the expenses
(including the reasonable fees and expenses of its counsel) and the
compensation for services in connection therewith are to constitute expenses
of administration under any bankruptcy law.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the removed Trustee in writing and may appoint a
successor trustee with the Company's consent. Such resignation or removal
shall not take effect until the appointment by the Securityholders or the
Company as hereinafter provided of a successor trustee and the acceptance of
such appointment by such successor trustee. The Company may remove the
Trustee and any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee for any or no reason, including if:
(1) the Trustee fails to comply with Section 7.10 after written request
by the Company or any bona fide Securityholder who has been a Securityholder
for at least six months;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor trustee. If a successor trustee does not take office within 45
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or any Holder may petition any court of competent jurisdiction
for the appointment of a successor trustee. A successor trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and
to the Company. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor trustee, the resignation
or removal of the retiring Trustee shall become effective, and the successor
trustee shall have all the rights, powers and duties of the Trustee under
this Indenture. A successor trustee shall mail notice of its succession to
each Securityholder.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges with or into or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall
be the successor trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have a combined
capital and surplus of at least $10,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.
(a) The Company may, at its option and, subject to the provisions of
Article Eleven hereof, at any time, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities of any Series
upon compliance with the applicable conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities of a Series on the date the applicable conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Securities
of a Series, which shall thereafter be deemed to be "outstanding" only for
the purposes of the Sections and matters under this Indenture referred to in
(i) and (ii) below, and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned,
except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Securities of
a Series to receive solely from the trust fund described in paragraph (d)
below and as more fully set forth in such paragraph, payments in respect of
the principal of and interest on such Securities when such payments are due
and (ii) obligations listed in Section 8.02, subject to compliance with this
Section 8.01. The Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below
with respect to such Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and
discharged from the obligations under any covenant contained in Article Five
and any other covenant contained in the Authorizing Resolution or
supplemental indenture relating to such Series to the extent provided for
therein, on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Securities of such Series shall
thereafter be deemed to be not "outstanding" for the purpose of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For
this purpose, such Covenant Defeasance means that, with respect to the
outstanding Securities of a Series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01(3), but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities of the
applicable Series:
(1) The Company shall have irrevocably deposited in trust with
theTrustee, pursuant to an irrevocable trust and security agreement in
formand substance reasonably satisfactory to the Trustee, money in U.S.
dollarsor U.S. government obligations or a combination thereof in such
amounts and maturing at such times as are sufficient, together with earnings
thereon, in the opinion of a nationally recognizedfirm of independent public
accountants, to pay the principal of andinterest on the outstanding
Securities of such Series to maturity orredemption; provided, however, that
the Trustee (or other qualifyingtrustee) shall have received an irrevocable
written order from the Companyinstructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such U.S.
governmentobligations to said payments with respect to the Securities of such
Seriesto maturity or redemption;
(2) No Default or Event of Default shall have occurred and
becontinuing on the date of such deposit;
(3) Such deposit will not result in a Default under this Indenture
ora breach or violation of, or constitute a default under, any other
materialinstrument or agreement to which the Company or any of any of
theirSubsidiaries is a party or by which it or any of their property is
bound;
(4) (i) In the event the Company elects paragraph (b) hereof,
theCompany shall deliver to the Trustee an Opinion of Counsel in the
UnitedStates, in form and substance reasonably satisfactory to the Trustee,
to the effect that (A) the Company has received from, or there has
beenpublished by, the Internal Revenue Service a ruling or (B) since the
IssueDate pertaining to such Series, there has been a change in the
applicablefederal income tax law, in either case to the effect that, and
basedthereon such Opinion of Counsel shall state that, or (ii) in the event
theCompany elects paragraph (c) hereof, the Company shall deliver to
theTrustee an Opinion of Counsel in the United States, in form and
substancereasonably satisfactory to the Trustee, to the effect that, in the
case ofclauses (i) and (ii), Holders of the Securities of such Series will
notrecognize income, gain or loss for federal income tax purposes as a
resultof such deposit and the defeasance contemplated hereby and will be
subjectto federal income tax in the same amounts and in the same manner and
at thesame times as would have been the case if such deposit and defeasance
hadnot occurred;
(5) The Company shall have delivered to the Trustee an
Officers'Certificate, stating that the deposit under clause (1) was not made
by theCompany with the intent of preferring the Holders of the Securities of
suchSeries over any other creditors of the Company or with the intent
ofdefeating, hindering, delaying or defrauding any other creditors of
theCompany or others;
(6) The Company shall have delivered to the Trustee an Opinion
ofCounsel, reasonably satisfactory to the Trustee, to the effect that, (A)the
trust funds will not be subject to the rights of Holders ofIndebtedness of
the Company other than the Securities of such Series and(B) assuming no
intervening bankruptcy of the Company between the date ofdeposit and the 91st
day following the deposit and that no Holder ofSecurities of such Series is
an insider of the Company, after the 91st dayfollowing the deposit, the trust
funds will not be subject to anyapplicable bankruptcy, insolvency,
reorganization or similar law affectingcreditors' rights generally; and
(7) The Company has delivered to the Trustee an Officers'
Certificateand an Opinion of Counsel, each stating that all conditions
precedentspecified herein relating to the defeasance contemplated by this
Section8.01 have been complied with. In the event all or any portion of
theSecurities of a Series are to be redeemed through such irrevocable
trust,the Company must make arrangements satisfactory to the Trustee, at the
timeof such deposit, for the giving of the notice of such redemption
orredemptions by the Trustee in the name and at the expense of the Company.
(e) In addition to the Company's rights above under this Section 8.01,
the Company may terminate all of its obligations under this Indenture with
respect to a Series (subject to Section 8.02), when:
(1) All Securities of such Series theretofore authenticated
anddelivered (other than Securities which have been destroyed, lost or
stolenand which have been replaced or paid as provided in Section 2.07
andSecurities for whose payment money has theretofore been deposited in
trustor segregated and held in trust by the Company and thereafter repaid to
theCompany or discharged from such trust) have been delivered to the
Trusteefor cancellation or all such Securities not theretofore delivered to
theTrustee for cancellation have become due and payable and the Company
hasirrevocably deposited or caused to be deposited with the Trustee as
trustfunds in trust solely for that purpose an amount of money sufficient to
payand discharge the entire Indebtedness on the Securities not
theretoforedelivered to the Trustee for cancellation, for principal of and
interest;
(2) The Company has paid or caused to be paid all other sums
payablehereunder by the Company;
(3) The Company has delivered irrevocable instructions to the
Trusteeto apply the deposited money toward the payment of the Securities
atmaturity or redemption, as the case may be; and
(4) The Company has delivered to the Trustee an Officers'
Certificateand an Opinion of Counsel, stating that all conditions precedent
specifiedherein relating to the satisfaction and discharge of this Indenture
havebeen complied with.
Section 8.02. Survival of the Company's Obligations.
Notwithstanding the satisfaction and discharge of the Indenture under
Section 8.01, the Company's obligations in paragraph 9 of the Securities and
Sections 2.03 through 2.07, 4.01, 7.07, 7.08, 8.04 and 8.05, however, shall
survive until the Securities of an applicable Series are no longer
outstanding. Thereafter, the Company's obligations in paragraph 9 of the
Securities of such Series and Sections 7.07, 8.04 and 8.05 shall survive (as
they relate to such Series).
Section 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. government obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited
money and the money from U.S. government obligations in accordance with this
Indenture to the payment of principal of and interest on the Securities of
the defeased Series.
Section 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time. The Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once in a newspaper of general circulation in the City of New
York or mail to each such Holder notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Securityholders entitled to the money must look to the Company for
payment as general creditors unless applicable abandoned property law
designates another person and all liability of the Trustee or such Paying
Agent with respect to such money shall cease.
Section 8.05. Reinstatement.
If the Trustee is unable to apply any money or U.S. government
obligations in accordance with Section 8.01 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 Securities relating to the
Series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee is permitted to apply
all such money or U.S. government obligations in accordance with Section
8.01; provided, however, that (a) if the Company has made any payment of
interest on or principal of any Securities of the Series because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. government obligations held by the Trustee and (b) unless
otherwise required by any legal proceeding or any order or judgment of any
court or governmental authority, the Trustee shall return all such money or
U.S. government obligations to the Company promptly after receiving a written
request therefor at any time, if such reinstatement of the Company's
obligations has occurred and continue to be in effect.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of a Series without notice to or consent of any Securityholder
of such Series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide that specific provisions of this Indenture shall not
apply to a Series not previously issued;
(4) to create a Series and establish its terms;
(5) to provide for uncertificated Securities in addition to or in place
of certificated Securities; and
(6) to make any other change that does not adversely affect the rights
of Securityholders.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail notice of such amendment to the Securityholders.
Section 9.02. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of a Series without notice to any Securityholder of such
Series but with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each such Series affected
by the amendment. Each such Series shall vote as a separate class. The
Holders of a majority in principal amount of the outstanding Securities of
any Series may waive compliance by the Company with any provision of the
Securities of such Series or of this Indenture relating to such Series
without notice to any Securityholder. Without the consent of each
Securityholder of a Series affected, however, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any Security
or alter the provisions (including related definitions) with respect to
redemption of Securities pursuant to Article Three hereof or with respect to
any obligations on the part of the Company to offer to purchase or to redeem
Securities of a Series pursuant to the Authorizing Resolution or supplemental
indenture pertaining to such Series;
(4) modify the ranking or priority of the Securities of any Series;
(5) make any change in Sections 6.04, 6.07 or this 9.02;
(6) waive a continuing Default or Event of Default in the payment of the
principal of or interest on any Security; or
(7) make any Security payable at a place or in money other than that
stated in the Security, or impair the right of any Securityholder to bring
suit as permitted by Section 6.07. An amendment of a provision included
solely for the benefit of one or more Series does not affect the interests of
Securityholders of any other Series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplement, but it
shall be sufficient if such consent approves the substance thereof.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder shall bind
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. Subject to the
following paragraph, any such Holder or subsequent Holder, however, may
revoke the consent as to his Security or portion of a Security. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders of Securities of any Series
entitled to consent to any amendment, supplement or waiver, which record date
shall be at least 10 days prior to the first solicitation of such consent.
If a record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 90 days after such record date. After an
amendment, supplement or waiver becomes effective, it shall bind every
Holder, unless it makes a change described in any of clauses (1) through (7)
of Section 9.02, in which case, the amendment, supplement or waiver shall
bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
Section 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Company may require the Holder of the Security to deliver it to the
Trustee, at which time the Trustee shall place an appropriate notation on the
Security about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
Subject to Section 7.02(b), the Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article if the amendment,
supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but
need not sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental indenture
is authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in
accordance with its terms.
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 10.02. Notices.
Any order, consent, notice or communication shall be sufficiently given
if in writing and delivered in person or mailed by first class mail, postage
prepaid, addressed as follows:
if to the Company:
MacDermid, Incorporated
245 Freight Street
Waterbury, CT 06702
Attention: Daniel Leever, President
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail at his address as it appears on the registration
books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it
except that notice to the Trustee shall only be effective upon receipt
thereof by the Trustee.
If the Company mails notice or communications to the Securityholders, it
shall mail a copy to the Trustee at the same time.
Section 10.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
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 shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth
in Section 10.05) stating that, in the opinion of such counsel, all such
conditions precedent and covenants, compliance with which constitutes a
condition precedent, if any, provided for in this Indenture relating to the
proposed action or inaction, have been complied with and that any such
section does not conflict with the terms of the Indenture.
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 shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for
its functions.
Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions in Boston, Massachusetts and New York, New York
are not required to be open. If a payment date is a Legal Holiday at a place
of payment, payment may be made at that place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the intervening
period. A Business Day is any day other than a Legal Holiday.
Section 10.08. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities of each Series.
Section 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 10.10. No Recourse Against Others.
All liability described in paragraph 13 of the Securities of any
director, officer, employee or stockholder, as such, of the Company is waived
and released.
Section 10.11. Successors and Assigns.
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successors and assigns.
Section 10.12. 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 10.13. Severability.
In case any one or more of the provisions contained in this Indenture or
in the Securities of a Series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or
of such Securities.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
Section 11.01. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and the Trustee and each Holder of the
Securities by its acceptance thereof likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article Eleven;
and each person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all
payments of the principal of and interest on the Securities by the Company
shall, to the extent and in the manner set forth in this Article Eleven, be
subordinated and junior in right of payment to the prior payment in full in
cash of all amounts payable under Senior Indebtedness.
Section 11.02. No Payment on Securities in Certain Circumstances.
(a) No direct or indirect payment (excluding any payment or distribution
of Permitted Junior Securities) by or on behalf of the Company of principal
of or interest on the Securities, except from those funds held in trust for
the benefit of Holders of any Securities pursuant to the procedures set forth
in Article Eight hereof, whether pursuant to the terms of the Securities,
upon acceleration or otherwise, shall be made if, at the time of such
payment, there exists a default in the payment of all or any portion of the
obligations on any Senior Indebtedness, whether at maturity, on account of
mandatory redemption or prepayment, acceleration or otherwise, and such
default shall not have been cured or waived or the benefits of this sentence
waived by or on behalf of the holders of such Senior Indebtedness. In
addition, during the continuance of any non-payment event of default with
respect to any Designated Senior Indebtedness pursuant to which the maturity
thereof may be immediately accelerated, and upon receipt by the Trustee of
written notice (a "Payment Blockage Notice") from the holder or holders of
such Designated Senior Indebtedness or the trustee or agent acting on behalf
of such Designated Senior Indebtedness, then, unless and until such event of
default has been cured or waived or has ceased to exist or such Designated
Senior Indebtedness has been discharged or repaid in full in cash or the
benefits of these provisions have been waived by the holders of such
Designated Senior Indebtedness, no direct or indirect payment (excluding any
payment or distribution of Permitted Junior Securities) shall be made by or
on behalf of the Company of principal of or interest on the Securities,
except from those funds held in trust for the benefit of Holders of any
Securities pursuant to the procedures set forth in Article Eight hereof, to
such Holders, during a period (a "Payment Blockage Period") commencing on the
date of receipt of such notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the contrary,
(x) in no event shall a Payment Blockage Period extend beyond 179 days from
the date the Payment Blockage Notice in respect thereof was given, (y) there
shall be a period of at least 181 consecutive days in each 360-day period
when no Payment Blockage Period is in effect and (z) not more than one
Payment Blockage Period may be commenced with respect to the Securities
during any period of 360 consecutive days. No event of default that existed
or was continuing on the date of commencement of any Payment Blockage Period
with respect to the Designated Senior Indebtedness initiating such Payment
Blockage Period may be, or be made, the basis for the commencement of any
other Payment Blockage Period by the holder or holders of such Designated
Senior Indebtedness or the trustee or agent acting on behalf of such
Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such event of default has been cured or waived for a
period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder when such payment is prohibited by
Section 11.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that, upon notice from the Trustee to the
holders of Senior Indebtedness that such prohibited payment has been made,
the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing of the amounts
then due and owing on the Senior Indebtedness, if any, and only the amounts
specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
Section 11.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities), upon
any dissolution or winding up or liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Senior Indebtedness shall first be
paid in full in cash before the Holders of the Securities or the Trustee on
behalf of such Holders shall be entitled to receive any payment by the
Company of the principal of or interest on the Securities, or any payment by
the Company to acquire any of the Securities for cash, property or
securities, or any distribution with respect to the Securities of any cash,
property or securities (excluding any payment or distribution of Permitted
Junior Securities). Before any payment may be made by, or on behalf of, the
Company of the principal of or interest on the Securities upon any such
dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities (excluding any payment or
distribution of Permitted Junior Securities), to which the Holders of the
Securities or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by the Company or
by any receiver, trustee in bankruptcy, liquidation trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their representatives
or to the trustee or trustees or agent or agents under any agreement or
indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to
pay all such Senior Indebtedness in full in cash after giving effect to any
prior or concurrent payment, distribution or provision therefor to or for the
holders of such Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of the Company of any kind or character, whether in
cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities), shall be received by the Trustee or any Holder
of Securities at a time when such payment or distribution is prohibited by
Section 11.03(a) and before all obligations in respect of Senior Indebtedness
are paid in full in cash, or payment provided for, such payment or
distribution shall be received and held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their respective representatives, or to
the trustee or trustees or agent or agents under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been
paid in full in cash after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
The consolidation of the Company with, or the merger of the Company with
or into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five (or any replacement provisions as
contemplated by Article Five) shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 11.03 if such
other corporation shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions stated in Article Five (or any
replacement provisions as contemplated by Article Five).
Section 11.04. Subrogation.
Upon the payment in full of all Senior Indebtedness, or provision for
payment, the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company made on such Senior Indebtedness
until the principal of and interest on the Securities shall be paid in full
in cash; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee on their
behalf would be entitled except for the provisions of this Article Eleven,
and no payment over pursuant to the provisions of this Article Eleven to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee on
their behalf shall, as between the Company, its creditors other than holders
of Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article Eleven are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on
the other hand. If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article Eleven shall have been applied, pursuant to the provisions of this
Article Eleven, to the payment of all amounts payable under Senior
Indebtedness, then and in such case, the Holders of the Securities shall be
entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount required to make payment in full, or provision for payment, of
such Senior Indebtedness.
Section 11.05. Obligations of Company Unconditional.
Nothing contained in this Article Eleven or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company and
the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Holder of any Security or the Trustee
on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Eleven of the holders of the Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Without limiting the generality of the
foregoing, nothing contained in this Article Eleven shall restrict the right
of the Trustee or the Holders of Securities to take any action to declare the
Securities to be due and payable prior to their stated maturity pursuant to
Section 6.01 or to pursue any rights or remedies hereunder; provided,
however, that all Senior Indebtedness then due and payable shall first be
paid in full before the Holders of the Securities or the Trustee are entitled
to receive any direct or indirect payment from the Company of principal of or
interest on the Securities.
Section 11.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article Eleven. The Trustee shall not be charged with knowledge of the
existence of any event of default with respect to any Senior Indebtedness or
of any other facts which would prohibit the making of any payment to or by
the Trustee unless and until the Trustee shall have received notice in
writing at its corporate trust office to that effect signed by an Officer of
the Company, or by a holder of Senior Indebtedness or trustee or agent
therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts
exist; provided that if the Trustee shall not have received the notice
provided for in this Section 11.06 at least two Business Days prior to the
date upon which by the terms of this Indenture any moneys shall become
payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Security), then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive any moneys from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 11.06 shall limit the right of the holders of
Senior Indebtedness to recover payments as contemplated by Section 11.03.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder of any
Senior Indebtedness (or a trustee on behalf of, or other representative of,
such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such
holder. In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Eleven, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article Eleven, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
Section 11.07. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets or securities referred to in
this Article Eleven, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the
Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Eleven.
Section 11.08. Trustee's Relation to Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Eleven with respect to any Senior Indebtedness which
may at any time be held by it in its individual or any other capacity to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights
as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eleven, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness (except as provided in Section 11.03(b)). The Trustee
shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company
or to any other person cash, property or securities to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article Eleven or
otherwise.
Section 11.09. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or
otherwise be charged with. The provisions of this Article Eleven are intended
to be for the benefit of, and shall be enforceable directly by, the holders
of Senior Indebtedness.
Section 11.10. Securityholders Authorize Trustee To Effectuate Subordination
of Securities.
Each Holder of Securities by its acceptance of such Securities
authorizes and expressly directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Eleven, and appoints the Trustee its attorney-in-
fact for such purposes, including, in the event of any dissolution, winding-
up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim
for the unpaid balance of its Securities in the form required in those
proceedings.
Section 11.11. This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article Eleven shall not be
construed as preventing the occurrence of an Event of Default specified in
clause (1) or (2) of Section 6.01.
Section 11.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article Eleven shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
Section 11.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 11.09, the holders
of Senior Indebtedness may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Eleven or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding or secured; (b)
sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Indebtedness; (c) release any Person
liable in any manner for the collection of Senior Indebtedness; and (d)
exercise or refrain from exercising any rights against the Company and any
other Person.
Section 11.14. Certain Payments May Be Paid Prior to Dissolution.
All money and United States government obligations properly deposited in
trust with the Trustee pursuant to and in accordance with Article Eight shall
be for the sole benefit of the Holders and shall not be subject to this
Article Eleven.
Nothing contained in this Article Eleven or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in
Section 11.02, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments
or from effecting a termination of the Company's obligations under the
Securities and this Indenture as provided in Article Eight, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of on and interest on the Securities to the
holders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have
received the written notice provided for in Section 11.02(b) or in Section
11.06. The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company.
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, all as of the date first above written.
Dated:__________________, 1998 MACDERMID, INCORPORATED
By:___________________________
Name:
Title:
Dated:__________________, 1998 ______________, Trustee
By:___________________________
Name:
Title:
(SEAL)
EXHIBIT A
No. CUSIP No.: _______
[Title of Security]
MACDERMID, INCORPORATED, a Connecticut corporation promises to pay to or
registered assigns the principal sum of ______________________ Dollars1 on
___________________________ [Title of Security]
Interest Payment Dates:___________ and ___________
Record Dates:____________ and _____________
Authenticated:
Dated:
MACDERMID, INCORPORATED
(Seal) By:____________________________
Title:
By:____________________________
Title:
_________________, as Trustee, certifies that this is one of the
Securities referred to in the within mentioned Indenture.
By:____________________________
Authorized Signatory
1. Interest. MACDERMID, INCORPORATED (the "Company"), a Connecticut
corporation, promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay interest
semiannually on __________________ and ______________ of each year until the
principal is paid or made available for payment. Interest on the Securities
will accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid, from _______________, 19__,
provided that, if there is no existing default in the payment of interest,
and if this Security is authenticated between a record date referred to on
the face hereof and the next succeeding interest payment date, interest shall
accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest, if any, which will be paid on such special
payment date to Holders of record on such special record date as may be fixed
by the Company) to the persons who are registered Holders of Securities at
the close of business on the [Insert record dates]. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar.
Initially, _________________________ (the "Trustee") will act as Paying
Agent and Registrar. The Company may change or appoint any Paying Agent,
Registrar or co-Registrar without notice. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture dated as of
______________, 1998 ("Indenture") between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture (including
those terms set forth in the Authorizing Resolution or supplemental indenture
pertaining to the Securities of the Series of which this Security is a part)
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939 ("TIA") as in effect on the date of the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture
and the Act for a statement of them.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the applicable Authorizing
Resolution or supplemental indenture. Requests may be made to: MacDermid,
Incorporated, 245 Freight Street, Waterbury, Connecticut 06702 Attention:
Daniel Leever, President.
5. Optional Redemption.2
The Company may redeem the Securities at any time on or after
______________, ____, in whole or in part, at the following redemption prices
(expressed as a percentage of their principal amount) together with interest
accrued and unpaid to the date fixed for redemption:
If redeemed during the twelve-month period commencing on ______________
and ending on ___________ in each of the following year Percentage.
[Insert provisions relating to redemption at option of Holders, if any]
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 may be redeemed in part. On and after the redemption date interest
ceases to accrue on Securities or portions of them called for redemption,
provided that if the Company shall default in the payment of such Security at
the redemption price together with accrued interest, interest shall continue
to accrue at the rate borne by the Securities.
6. Mandatory Redemption.3
The Company shall redeem ____% of the aggregate principal amount of
Securities originally issued under the Indenture on each of , which
redemptions are calculated to retire % of the Securities originally issued
prior to maturity. Such redemptions shall be made at a redemption price equal
to 100% of the principal amount thereof, together with accrued interest to
the redemption date. The Company may reduce the principal amount of
Securities to be redeemed pursuant to this Paragraph 6 by the principal
amount of any Securities previously redeemed, retired or acquired, otherwise
than pursuant to this Paragraph 6, that the Company has delivered to the
Trustee for cancellation and not previously credited to the Company's
obligations under this Paragraph 6. Each such Security shall be received and
credited for such purpose by the Trustee at the redemption price and the
amount of such mandatory redemption payment shall be reduced accordingly.
7. Denominations, Transfer, Exchange4.
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A Holder may transfer or
exchange Securities by presentation of such Securities to the Registrar or a
co-Registrar with a request to register the transfer or to exchange them for
an equal principal amount of Securities of other denominations. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
The Registrar need not transfer or exchange any Security selected for
redemption, except the unredeemed part thereof if the Security is redeemed in
part, or transfer or exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
[Insert different or additional denomination and multiples.]
8. Persons Deemed Owners.
The registered Holder of this Security shall be treated as the owner of
it for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Company
at its request. After that, Holders entitled to the money must look to the
Company for payment unless an abandoned property law designates another
person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Securities of each Series
affected by the amendment, and any past default or compliance with any
provision relating to any Series of the Securities may be waived in a
particular instance with the consent of the Holders of a majority in
principal amount of the outstanding Securities of such Series.5 Without the
consent of any Securityholder, the Company and the Trustee may amend or
supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities, to create a Series and establish its terms,
or to make any other change, provided such action does not adversely affect
the rights of any Securityholder.
11. Successor Corporation.6
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor
corporation will be released from those obligations.
12. Trustee Dealings With Company.
________________________________, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its affiliates, and may otherwise
deal with the Company or its affiliates, as if it were not Trustee.
13. No Recourse Against Other
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
14. Discharge of Indenture.
The Indenture contains certain provisions pertaining to defeasance,
which provisions shall for all purposes have the same effect as if set forth
herein.
15. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
16. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder 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).
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to __________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Insert assignee's social security or tax ID number) ___________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type assignee's name, address, and zip code)__________________
_____________________________________________________________________________
_____________________________________________________________________________
and irrevocably appoint ________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
agent to transfer this ___________
Security on the books of the Company. The agent may substitute another to
act for him.
Your signature:_______________________
(Sign exactly as your name appearson the other side of this Security)
Signature Guarantee:_____________________
Date:__________________
December 7, 1998
MacDermid, Incorporated
245 Freight Street
Waterbury, Connecticut 06702
Re: MacDermid, Incorporated/Registration Statement on Form S-3
Ladies and Gentlemen:
Reference is hereby made to the Registration Statement on Form S-3 (as
amended, the "Registration Statement"), which MacDermid, Incorporated, a
Connnecticut corporation (the "Company"), has filed on the date hereof with
the Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Act"), with respect to the offering and issuance
from time to time by the Company of the following: (i) one or more series of
its debt securities (the "Debt Securities"), which may be senior debt
securities, senior subordinated debt securities or subordinated debt
securities, (ii) shares of its Preferred Stock, no par value per share (the
"Preferred Stock"), (iii) shares of its Common Stock, no par value per share
(the "Common Stock"), and/or (iv) warrants (the "Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock, valued in the aggregate at a
maximum of $300,000,000. The Debt Securities, the Preferred Stock, the
Common Stock and the Warrants are herein collectively referred to as the
"Securities." All capitalized terms which are not defined herein shall have
the meanings assigned to them in the Registration Statement.
We have acted as counsel for the Company in connection with the
Registration Statement and are familiar with the proceedings taken by the
Company in connection with the authorization, registration, sale and issuance
of the Securities. We have examined the Restated Certificate of
Incorporation, as amended, and By-laws of the Company and all amendments
thereto, and certificates of public officials and such other documents,
records and materials as we have deemed necessary in connection with this
opinion letter.
On the basis of, and in reliance on, the foregoing examination and upon
information furnished to us by the Company's officers, directors and agents,
and subject to the assumptions, exceptions, qualifications and limitations
contained herein and to future compliance with the pertinent provisions of
the Act and, with respect to the Indentures (as defined below) and the Debt
Securities, future compliance with the Trust Indenture Act of 1939, as
amended (the "TIA"), and future compliance with such securities or "blue sky"
laws of any jurisdiction as may be applicable, we are of the opinion that:
1. When (a) the Debt Securities in substantially the form contained
in (as appropriate) the Form of Senior Debt Securities Indenture, the Form of
Senior Subordinated Debt Securities Indenture or the Form of Subordinated
Debt Securities Indenture (as amended or supplemented in accordance with the
respective terms thereof, each an "Indenture") shall have been authorized,
executed and authenticated in accordance with the terms of the applicable
Indenture, (b) the Indentures shall have been duly authorized, executed and
delivered by the Company and qualified under the TIA and (c) the Debt
Securities shall have been issued and sold as described in the Registration
Statement, and if in an underwritten offering, in accordance with the terms
and conditions of the applicable underwriting agreement, the Debt Securities
will be duly authorized and valid and binding obligations of the Company.
2. When the Preferred Stock shall have been authorized, issued and
sold as described in the Registration Statement and, if in an underwritten
offering, in accordance with the terms and conditions of the applicable
underwriting agreement, the Preferred Stock will be validly issued, fully
paid and nonassessable.
3. When the Common Stock shall have been authorized, issued and sold
as described in the Registration Statement and, if in an underwritten
offering, in accordance with the terms and conditions of the applicable
underwriting agreement, the Common Stock will be validly issued, fully paid
and nonassessable.
4. When the Warrants shall have been authorized, issued and sold as
described in the Registration Statement and, if in an underwritten offering,
in accordance with the terms and conditions of the applicable underwriting
agreement, the Warrants will be duly authorized and valid and binding
obligations of the Company.
The opinions set forth above are subject to the following assumptions,
qualifications, limitations and exceptions being true and correct at or prior
to the time of the delivery of any such Security:
(a) The Board of Directors of the Company shall have duly
established the terms of such Security and duly authorized the issuance and
sale of such Security in conformity with the Company's Restated Certificate
of Incorporation, as amended through such time, and such authorization shall
not have been modified or rescinded;
(b) The Registration Statement shall have been declared effective
and such effectiveness shall not have been terminated or rescinded;
(c) The applicable Trustee and shall have been qualified under the
TIA and a Form T-1 shall have been properly filed as an exhibit to the
Registration Statement;
(d) In the case of an Indenture, Debt Security or agreement pursuant
to which any Warrants are to be issued, there shall be no terms or provisions
contained therein which would have the effect, under applicable law, of
vitiating the validity and binding nature of such instrument;
(e) There will not have occurred any change in law affecting the
validity or enforceability of such Security; and
(f) The validity and binding effect of any of the obligations of
the Company with reference to any such Security are subject to the effect of
any bankruptcy, insolvency, reorganization, moratorium, arrangement, or
similar laws affecting the enforcement of creditors' rights generally
(including, without limitation, the effect of statutory or other laws
regarding fraudulent transfers or preferential transfers) and general
principles of equity, regardless of whether enforceability is considered in a
proceeding in equity or at law.
This opinion is limited to the current laws of the Commonwealth of
Massachusetts and the current federal laws of the United States and to the
present judicial interpretations thereof and to the facts as they presently
exist. We undertake no obligation to advise you of changes that may result
from developments occurring after the date hereof or from facts or
circumstances brought to our attention after the date hereof.
This opinion may be filed as an exhibit to the Registration Statement.
Consent is also given to the reference to this firm under the caption "Legal
Matters" in the prospectus contained in the Registration Statement. In
giving this consent, we do not admit we are included in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
Nutter, McClennen & Fish, LLP
MEM/AJM2
EXHIBIT 12.1
<TABLE>
MACDERMID, INCORPORATED
RATIO OF EARNINGS TO FIXED CHARGES-CONTINUING OPERATIONS
(DOLLARS IN THOUSANDS)
<CAPTION>
FOR THE SIX
MONTHS ENDED
SEPTEMBER 30, FOR THE YEAR ENDED MARCH 31,
1998 1997 1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Total Interest
Accrued $ 4,276 $ 3,208 $ 7,103 $ 6,611 $ 4,005 $ 1,844 $ 1,103
Interest factor
in lease rentals 1,000 942 1,990 1,884 2,228 1,639 1,579
Fixed Charges $5,276 $4,150 $9,903 $8,495 $6,233 $3,483 $2,682
Earnings &
Adjusments
Income (loss)
from continuing
operations
before
income taxes $25,684 $23,483 $48,106 $38,717 $23,621 $18,147 $12,424
Add (Deduct):
Depreciation and
Amortization 2,920 2,873 5,832 5,463 4,525 4,349 4,596
Amortization of
Goodwill 2,861 2,453 5,410 4,787 3,307 685 1,011
Noncash charges
Income from
unconsolidated
joint ventures (300)
Cash distributions
from joint ventures
Fixed charges,
above
Capitalized
interest 5,276 4,150 9,093 8,495 6,233 3,483 2,682
Amortization of
previously
capitalized
interest
Adjusted
Earnings $36,441 $32,959 $68,441 $57,462 $37,686 $26,664 $20,713
Ratio of
Earnings to
Fixed Charges 6.91:1 7.94:1 7.53:1 6.76:1 6.05:1 7.66:1 7.72:1
</TABLE>
EX-23.1
Consent of Auditors
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
KPMG Peat Marwick LLP (Logo)
Certified Public Accountants
CityPlace II
Hartford, CT 06103-4103
Independent Auditors' Consent
The Board of Directors
MacDermid, Incorporated:
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Hartford, Connecticut
December 3, 1998
