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As filed with the Securities and Exchange Commission on October 23, 1997.
Registration No. 333-38619
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MISSISSIPPI CHEMICAL CORPORATION
--------------------------------
(Exact name of registrant as specified in its charter)
MISSISSIPPI 64-0292638
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. BOX 388
YAZOO CITY, MISSISSIPPI 39194
(601) 746-4131
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
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Bill Smith
General Counsel
Mississippi Chemical Corporation
P.O. Box 388
Yazoo City, Mississippi 39194
(601) 746-4131
(Name, address, and telephone number,
including area code, of agent for service)
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COPIES TO:
Alan J. Bogdanow, Esq.
Hughes & Luce, L.L.P.
1717 Main Street, Suite 2800
Dallas, Texas 75201
(214) 939-5500
Approximate date of commencement of proposed sale of the securities 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, check the following box: [X]
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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, 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
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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$300,000,000
MISSISSIPPI CHEMICAL CORPORATION
DEBT SECURITIES
Mississippi Chemical Corporation (the "Company") may from time to time offer
its debt securities ("Securities") up to an aggregate initial offering price
not to exceed $300,000,000, in separate series, in amounts and at prices and
on terms determined by market conditions at the time of the sale. The
Securities may be denominated in U.S. dollars or in any other currency,
currency units or composite currencies as may be designated by the Company.
The designation, aggregate principal amount, maturity date, public offering
price, interest rate or rates (which may be fixed or variable) or the method
by which such rate or rates are determined and timing of payments of interest,
if any, provision for redemption, sinking fund requirements, if any, any other
variable terms and the method of distribution in connection with the offering
of Securities in respect of which this Prospectus is being delivered, will be
set forth in a Prospectus Supplement relating thereto. The Prospectus
Supplement will contain information, where applicable, relating to certain
United States federal income taxes relating to, and any listing on a
securities exchange of, the Securities covered by such Prospectus Supplement.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE
----------------
The Company may sell Securities to or through underwriters or groups of
underwriters or dealers, and also may sell Securities to one or more other
purchasers, directly or through agents. See "Plan of Distribution." The
Prospectus Supplement will set forth the names of any underwriters, dealers or
agents involved in the sale of any Securities offered thereunder, the
principal amounts, if any, to be purchased by underwriters and the
compensation of such underwriters, dealers or agents.
----------------
The date of this Prospectus is November 5, 1997.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, information statements, and other
information with the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements, and other information may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the Commission's
Regional Offices at Seven World Trade Center, 13th Floor, New York, New York
10048; and at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material may be obtained at prescribed rates
from the Public Reference Room of the Commission at its principal office in
Washington, D.C. The Commission maintains a site on the World Wide Web that
contains documents filed electronically with the Commission. The address of
the Commission's web site is http://www.sec.gov, and the materials filed
electronically by the Company may be inspected at such site. In addition, the
materials filed by the Company at the New York Stock Exchange may be inspected
at the Exchange's offices, 20 Broad Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 with the
Commission under the Securities Act of 1933, as amended (the "Securities
Act"), concerning the Securities. This Prospectus, which constitutes a part of
the Registration Statement, omits certain of the information contained in the
Registration Statement and the exhibits thereto. Statements contained in this
Prospectus, or in any document incorporated by reference herein, as to the
contents of any document are summaries of such documents and are not
necessarily complete, and in each instance reference is made to the copy of
such document filed as an exhibit to the Registration Statement or such other
document, each such statement being hereby qualified in all respects by such
reference. The Registration Statement, including the exhibits thereto, is on
file at the offices of the Commission and may be inspected and copied as
described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates by reference herein the following documents, which
have been filed with the Commission pursuant to the Exchange Act:
(a) the Company's Annual Report on Form 10-K for the year ended June 30,
1997; and
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
All documents and reports filed by the Company pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering relating to this
Prospectus will be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the dates of filing of such documents or reports.
Any statement contained herein or in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
Registration Statement and this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
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This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. Such documents (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference)
are available, without charge, to any person to whom this Prospectus is
delivered, upon written or oral request to: Rosalyn B. Glascoe, Corporate
Secretary, Mississippi Chemical Corporation, P.O. Box 388, Yazoo City,
Mississippi 39194 (telephone (601) 746-4131).
THE COMPANY
The Company produces and supplies a full product line of fertilizers,
including nitrogen, phosphate and potash fertilizers. The Company's principal
nitrogen products include ammonia, fertilizer-grade ammonium nitrate, UAN
solutions, and urea. The Company currently produces nitrogen fertilizers at
its production facilities in Yazoo City, Mississippi and Donaldsonville,
Louisiana and has entered into a 50-50 joint venture to construct an ammonia
plant in The Republic of Trinidad and Tobago. The Company distributes its
nitrogen fertilizers primarily in the southern farming regions of the United
States. The Company produces diammonium phosphate fertilizer ("DAP") at its
facility in Pascagoula, Mississippi and exports a vast majority of its DAP
production. China, India, and Latin America are currently the Company's
largest DAP export markets. The Company's mines and related facilities near
Carslbad, New Mexico produce the Company's potash fertilizer. A majority of
the Company's agricultural potash sales are in domestic markets in states west
of the Mississippi River and its primary export sales are to Latin American
countries and Japan. The Company also markets some of its nitrogen and potash
products for industrial use.
The Company was incorporated in Mississippi in 1994 and is the successor by
merger, effective July 1, 1994, to a fertilizer cooperative formed in 1948.
The Company's principal executive offices are located at Highway 49 East, P.
O. Box 388, Yazoo City, Mississippi 39194 and its telephone number is (601)
746-4131.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of the Company's earnings to fixed
charges, for the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED SEPTEMBER 30, YEAR ENDED JUNE 30,
------------------- -----------------------------
1997 1996 1997 1996 1995 1994 1994
---- ---------- ---- ----- ----- ---- ----
<S> <C> <C> <C> <C> <C> <C>
2.1x 27.5x 9.6x 74.3x 33.9x 7.5x(1) 5.0x(1)
========= ========== ==== ===== ===== ==== ====
</TABLE>
- --------
(1) Exclusive of discontinued operations. If the ratio included discontinued
operations, the ratio for 1994 and 1993 would be 2.4 and 2.0,
respectively.
For the purpose of computing the ratios of earnings to fixed charges,
"earnings" consists of earnings from continuing operations before income taxes
and fixed charges and, for periods prior to July 1, 1994, before patronage
refunds. "Fixed charges" consists of interest charges and the portion of
rental expense deemed representative of the interest factor.
USE OF PROCEEDS
Except as otherwise provided in an applicable Prospectus Supplement, the net
proceeds from the sale of the Securities will be added to the Company's funds
to be used for general corporate purposes, including repayment of bank debt,
working capital, capital expenditures and the repayment of other debt
outstanding from time to time. Pending such application, such net proceeds may
be invested in short-term marketable securities. Specific information about
the use of proceeds from the sale of Securities will be set forth in the
applicable Prospectus Supplement. The Company may from time to time incur
additional indebtedness other than through the offering of Securities pursuant
to this Prospectus.
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DESCRIPTION OF SECURITIES
The Securities will be issued under an indenture (the "Indenture") between
the Company and Harris Trust and Savings Bank, as trustee (the "Indenture
Trustee"). A form of the Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part and is available for
inspection at the corporate trust office of the Indenture Trustee at 111 West
Monroe Street, Chicago, Illinois 60603. The Indenture will be subject to and
governed by the Trust Indenture Act of 1939, as amended. The statements made
under this heading relating to the Securities and the Indenture are summaries
of the provisions thereof and do not purport to be complete and are qualified
in their entirety by reference to the Indenture and the Securities. All
Section references herein are to Sections of the Indenture, which are
incorporated herein by reference. Capitalized terms used but not defined have
the respective meanings set forth in the Indenture.
GENERAL
The Securities will be direct unsecured obligations of the Company and will
rank equally with all other unsecured and unsubordinated indebtedness of the
Company and senior to all current and future subordinated indebtedness of the
Company. The Securities may be issued in one or more series, in each case as
established from time to time by the Company by Board Resolution or as
established in the Indenture or in one or more indentures supplemental to the
Indenture. All Securities of one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent
of the holders of the Securities of such series, for issuance of additional
Securities of such series (Section 301).
The Indenture provides that there may be more than one Indenture Trustee
thereunder, each with respect to one or more series of Securities. Any
Indenture Trustee under the Indenture may resign or be removed with respect to
one or more series of Securities, and a successor Indenture Trustee may be
appointed to act with respect to such series (Section 608). If two or more
persons are acting as Indenture Trustee with respect to different series of
Securities, each such Indenture Trustee will be an Indenture Trustee of a
trust under the Indenture separate and apart from the trust administered by
any other Indenture Trustee (Section 609). In general, any action to be taken
by an Indenture Trustee may be taken by each such Indenture Trustee with
respect to, and only with respect to, the one or more series of Securities for
which it is Indenture Trustee under the Indenture.
The Prospectus Supplement relating to the series of Securities being offered
will contain the specific terms thereof, including:
(a) The designation of such Securities.
(b) The aggregate principal amount of such Securities.
(c) The percentage of the principal amount at which such Securities will
be issued and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon declaration of acceleration of
the maturity thereof, or the method by which any such portion will be
determined.
(d) The date or dates, or the method for determining such date or dates,
on which the principal of such Securities will be payable.
(e) The rate or rates (which may be fixed or variable), or the method by
which such rate or rates will be determined, at which such Securities will
bear interest.
(f) The date or dates, or the method for determining such date or dates,
from which any such interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment dates,
or the method by which such dates will be determined, the persons to whom
such interest will be payable, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day months.
(g) The place or places where the principal of (and premium, if any) and
interest on such Securities will be payable, where such Securities may be
surrendered for registration of transfer or exchange and where notices or
demands to or upon the Company in respect of such Securities and the
Indenture may be served.
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(h) The period or periods within which, the price or prices at which and
the other terms and conditions upon which such Securities may be redeemed,
as a whole or in part, at the option of the Company, if the Company is to
have such an option.
(i) The obligation, if any, of the Company to redeem, repay or purchase
such Securities pursuant to any sinking fund or analogous provision or at
the option of a holder thereof, and the period or periods within which, the
price or prices at which and the other terms and conditions upon which such
Securities will be redeemed, repaid or purchased, as a whole or in part,
pursuant to such obligation.
(j) If other than U.S. dollars, the currency or currencies in which such
Securities are denominated and payable, which may be another currency or
units of two or more other currencies or a composite currency or
currencies, and the terms and conditions relating thereto.
(k) Whether the amount of payments of principal of (and premium, if any)
or interest on such Securities may be determined with reference to an
index, formula or other method (which index, formula or method may, but
need not, be based on a currency, currencies, currency unit or units or
composite currency or currencies) and the manner in which such amounts will
be determined.
(l) The Events of Default or covenants of such Securities, to the extent
different from those described herein.
(m) Whether such Securities will be issued in certificated or book-entry
form.
(n) Whether such Securities will be in registered or bearer form and, if
in registered form, the denominations thereof if other than $1,000 and any
integral multiple thereof and, if in bearer form, the denominations thereof
and terms and conditions relating thereto.
(o) The applicability, if any, of the defeasance and covenant defeasance
provisions described herein, or any modification thereof.
(p) Whether and under what circumstances the Company will pay any
additional amounts on such Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the option to
redeem such Securities in lieu of making such payment.
(q) Any other terms, conditions, rights and preferences of such
Securities (Section 301).
The Securities may provide for less than the entire principal amount thereof
to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special United States federal income
tax, accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
The Prospectus Supplement for each offering of Securities may add to or
change statements contained in this Prospectus. Except as may be set forth in
any Prospectus Supplement, the Securities will not contain any provisions that
would limit the ability of the Company to incur unsecured indebtedness or that
would afford holders of Securities protection in the event of a decline in the
Company's credit quality, a highly leveraged or similar transaction involving
the Company or a change of control. Reference is made to the applicable
Prospectus Supplement for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants of the
Company that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
DENOMINATION, INTEREST, REGISTRATION OR TRANSFER
Unless specified in the applicable Prospectus Supplement, the Securities of
any series will be issuable in denominations of $1,000 and integral multiples
thereof (Section 302).
The principal of (and applicable premium, if any) and interest on any series
of Securities will be payable at the corporate trust office of the Indenture
Trustee, which initially will be Harris Trust and Savings Bank; provided that,
at the option of the Company, payment of interest may be made by check mailed
to the address of
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the Person entitled thereto as it appears in the applicable register for such
Securities or by wire transfer of funds to such Person at an account
maintained within the United States (Sections 301, 307 and 1002).
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a Security ("Defaulted Interest") will forthwith
cease to be payable to the holder on the applicable Regular Record Date and
may either be paid to the Person in whose name such Security is registered at
the close of business on a special record date (the "Special Record Date") for
the payment of such Defaulted Interest to be fixed by the Indenture Trustee,
notice whereof will be given to the holder of such Security not less than 10
days prior to such Special Record Date, or may be paid at any time in any
other lawful manner, all as more completely described in the Indenture
(Section 307).
Subject to certain limitations imposed upon Securities issued in book-entry
form, the Securities of any series will be exchangeable for other Securities
of the same series and of a like aggregate principal amount and tenor of
different authorized denominations upon surrender of such Securities at the
corporate office of the Indenture Trustee. In addition, subject to certain
limitations imposed upon Securities issued in book-entry form, the Securities
of any series may be surrendered for registration of transfer or exchange
thereof at the corporate trust office of the Indenture Trustee. Every Security
surrendered for registration of transfer or exchange must be duly endorsed or
accompanied by a written instrument of transfer. No service charge will be
made for any registration of transfer or exchange of any Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section 305). If the
applicable Prospectus Supplement refers to any transfer agent (in addition to
the Indenture Trustee) initially designated by the Company with respect to any
series of Securities, the Company may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent acts, except that the Company will be required to maintain
a transfer agent in each place of payment for such series. The Company may at
any time designate additional transfer agents with respect to any series of
Securities (Section 1002).
Neither the Company nor the Indenture Trustee will be required to (a) issue,
register the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending at the close of business
on the day of mailing of the relevant notice of redemption, (b) register the
transfer of or exchange any Security, or portion thereof, called for
redemption, except the unredeemed portion of any Security being redeemed in
part, or (c) issue, register the transfer of or exchange any Security that has
been surrendered for repayment at the option of the holder, except the
portion, if any, of such Security not to be so repaid (Section 305).
MERGER, CONSOLIDATION OR SALE
The Company will be permitted to consolidate with, or sell, lease or convey
all or substantially all of its assets to, or merge with or into, any other
entity, provided that (a) either the Company will be the continuing entity, or
the successor entity (if other than the Company) formed by or resulting from
any such consolidation or merger or which will have received the transfer of
such assets expressly assumes payment of the principal of (and premium, if
any) and interest on all of the Securities and the due and punctual
performance and observance of all of the covenants and conditions contained in
the Indenture and (b) immediately after giving effect to such transaction, no
Event of Default under the Indenture, and no event which, after notice or the
lapse of time, or both, would become such an Event of Default, will have
occurred and be continuing (Sections 801 and 804). With respect to the sale of
assets, the phrase "all or substantially all" as used in the Indenture varies
according to the facts and circumstances of the subject transaction, has no
clearly established meaning under New York law (which governs the Indenture)
and is subject to judicial interpretation. Accordingly, in certain
circumstances there may be a degree of uncertainty in ascertaining whether a
particular transaction would involve a disposition of "all or substantially
all" of the assets of a person, and therefore it may be unclear as to whether
a disposition of assets comes within the terms of this provision.
CERTAIN COVENANTS
Limitation on Liens. The Indenture will provide that the Company will not,
and will not permit any Subsidiary of the Company to, incur any Lien on or
with respect to any Principal Property of the Company or
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any such Subsidiary (whether such Principal Property is owned on or acquired
after the date of the Indenture) to secure Debt without making, or causing
such Subsidiary to make, effective provision for securing the Securities
equally and ratably with (or prior to) such Debt or, in the event such Debt is
subordinate in right of payment to the Securities, prior to such Debt, as to
such Principal Property for so long as such Debt will be so secured. The
foregoing restrictions will not apply to Liens in respect of Debt existing on
the date of the Indenture, to Liens on or with respect to property that is not
Principal Property, or to (a) Liens securing only Securities; (b) Liens in
favor of the Company or any of its Subsidiaries; (c) Liens on property
existing immediately prior to the time of acquisition thereof (and not created
in anticipation of the financing of such acquisition); (d) Liens to secure
Debt incurred for the purpose of financing all or any part of the purchase
price or the cost of construction or improvement of property used in the
business of the Company or any of its Subsidiaries and subject to such Liens,
provided that (i) the principal amount of any Debt secured by such a Lien does
not exceed 100% of such purchase price or cost, (ii) such Lien does not extend
to or cover any other property other than such property and any such
improvements, and (iii) such Debt is incurred within 360 days of such
purchase, construction or improvement; (e) Liens on property of a Person
existing at the time such Person is merged with or into or consolidated with
the Company or any of its Subsidiaries that were not created in anticipation
of the acquisition of such Person, provided that such Lien does not extend to
or cover any property other than that of the Person so merged or consolidated;
(f) Liens on any Principal Property in favor of a governmental body to secure
partial progress, advance or other payments pursuant to any contract or
statute of such governmental body; and (g) Liens to secure Debt incurred to
extend, renew, refinance, replace or refund (or successive extensions,
renewals, refinancings, replacements or refundings), in whole or in part, (i)
any secured Debt existing on the date of this Indenture, or (ii) any Debt
secured by any Lien referred to in the foregoing clauses, so long as in each
such case the Lien does not extend to any other property and the Debt so
secured is not increased other than for reasonable costs related to such
extension, renewal, refinancing, replacement or refunding.
In addition to the foregoing, the Company and its Subsidiaries may incur a
Lien or Liens to secure Debt (excluding Debt secured by Liens permitted under
the foregoing exceptions) the aggregate amount of which, including
Attributable Debt in respect of Sale and Leaseback Transactions, does not
exceed 15% of Consolidated Net Tangible Assets. The Company and its
Subsidiaries may also incur a Lien or Liens to secure any Debt incurred
pursuant to a Sale and Leaseback Transaction, without securing the Securities
equally and ratably with or prior to such Debt, as applicable, provided that
such Sale and Leaseback Transaction is permitted by the provisions of the
Indenture described below in clauses (b) and (c) under "--Limitation on Sale
and Leaseback Transactions" (Section 1006).
Limitation on Sale and Leaseback Transactions. The Indenture will provide
that the Company will not, and will not permit any Subsidiary of the Company
to, enter into any Sale and Leaseback Transaction with respect to any
Principal Property (except for a period, including renewals, not exceeding 36
months) unless (a) at the time of entering into such Sale and Leaseback
Transaction, the Company or such Subsidiary would be entitled to incur Debt,
in a principal amount equal to the Attributable Debt in respect of such Sale
and Leaseback Transaction, secured by a Lien, without equally and ratably
securing the Securities; (b) the Company or such Subsidiary applies, within 12
months after the sale or transfer, an amount equal to the greater of (i) the
net proceeds of the Principal Property sold pursuant to the Sale and Leaseback
Transaction, or (ii) the fair value (in the opinion of an executive officer of
the Company) of such Principal Property to the acquisition of or construction
on property used or to be used in the ordinary course of business of the
Company or a Subsidiary of the Company, and the Company shall have elected to
designate such amount as a credit against such Sale and Leaseback Transaction
(with any such amount not being so designated to be applied as set forth in
clause (c) below); or (c) the Company or such Subsidiary applies, within 12
months after the sale or transfer, an amount equal to the net proceeds of the
Principal Property sold pursuant to the Sale and Leaseback Transaction to the
voluntary defeasance or retirement of Debt (other than Debt that is held by
the Company or a Subsidiary of the Company or Debt of the Company that is
subordinate in right of payment to the Securities), which amount will not be
less than the fair value (in the opinion of an executive officer of the
Company) of such Principal Property (adjusted to reflect an amount expended by
the Company as set forth in clause (b) above) less an amount equal
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to the principal amount of such Debt voluntarily defeased or retired by the
Company or such Subsidiary within such 12-month period and not designated as a
credit against any other Sale and Leaseback Transaction entered into by the
Company or any Subsidiary of the Company during such period (Section 1007).
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that the following events are "Events of Default"
with respect to any series of Securities issued thereunder: (a) default for 30
days in the payment of any installment of interest on any Security of such
series; (b) default in the payment of principal of (or premium, if any) any
Security of such series either at maturity (or upon any redemption), by
declaration or otherwise; (c) default in making any sinking fund payment as
required for any Security of such series; (d) default in the performance or
breach of any other covenant or warranty of the Company contained in the
Securities of such series or set forth in the Indenture (other than a covenant
added to the Indenture solely for the benefit of a series of Securities other
than such series), continued for 60 days after written notice as provided in
the Indenture; (e) acceleration or failure to pay at final maturity any debt
of the Company or any Subsidiary of the Company in an aggregate amount in
excess of $25 million; (f) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of
the Company or any Significant Subsidiary of the Company; and (g) any other
Event of Default provided with respect to a particular series of Securities
(Section 501).
If an Event of Default under the Indenture with respect to Securities of any
series at the time outstanding occurs and is continuing, then in every such
case the Indenture Trustee or the holders of not less than 25% in principal
amount of the outstanding Securities of that series will have the right to
declare the principal amount (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately by written notice
thereof to the Company (and to the Indenture Trustee if given by the holders).
However, at any time after such a declaration of acceleration with respect to
Securities of such series (or of all Securities then outstanding under the
Indenture, as the case may be) has been made, but before a judgment or decree
for payment of the money due has been obtained by the Indenture Trustee, the
holders of not less than a majority in principal amount of outstanding
Securities of such series (or of all Securities then outstanding under the
Indenture, as the case may be) may rescind and annul such declaration and its
consequences if (a) the Company deposits with the Indenture Trustee all
required payments of the principal of (and premium, if any) and interest on
the Securities of such series (or of all Securities then outstanding under the
Indenture, as the case may be), plus certain fees, expenses, disbursements and
advances of the Indenture Trustee, and (b) all Events of Default, other than
the non-payment of accelerated principal (or specified portion thereof), with
respect to Securities of such series (or of all Securities then outstanding
under the Indenture, as the case may be) are cured or waived as provided in
the Indenture (Section 502). The Indenture also provides that the holders of
not less than a majority in principal amount of the outstanding Securities of
any series (or of all Securities then outstanding under the Indenture, as the
case may be) may waive any past default with respect to such series and its
consequences, except a default (a) in the payment of the principal of (or
premium, if any) or interest on any Security of such series, or (b) under a
covenant or provision contained in the Indenture that cannot be modified or
amended without the consent of the holder of each outstanding Security
affected thereby (Section 513).
The Indenture Trustee will be required to give notice to the holders of
Securities within 90 days of default under the Indenture unless such default
is cured or waived; provided that such Indenture Trustee may withhold notice
to the holders of any series of Securities of any default with respect to such
series (except a default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in payment of any sinking
fund installment in respect of any Security of such series) if specified
responsible officers of such Indenture Trustee consider such withholding to be
in the interest of such holders.
The Indenture provides that no holders of Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the
Indenture or for any remedy thereunder, except in the cases of failure of the
Indenture Trustee, for 60 days, to act after it has received a written request
to institute proceedings in respect of
8
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an Event of Default from the holders of not less than 25% in principal amount
of the outstanding Securities of such series (Section 507). This provision
will not prevent, however, any holder of Securities from instituting suit for
the enforcement of payment of the principal of (and premium, if any) and
interest on such Securities at the due dates thereof.
Subject to provisions in the Indenture relating to its duties in case of
default, the Indenture Trustee will not be under any obligation to exercise
any of its rights or powers under the Indenture at the request of direction of
any holders of any series of Securities then outstanding under such Indenture,
unless such holders offer to the Indenture Trustee reasonable security or
indemnity. The holders of not less than a majority in principal amount of the
outstanding Securities of any series (or of all Securities then outstanding
under the Indenture, as the case may be) will have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Indenture Trustee, or of exercising any trust or power conferred upon
such Indenture Trustee. However, an Indenture Trustee may refuse to follow any
direction which is in conflict with any law or the Indenture, which may
involve the Indenture Trustee in personal liability or which may be unduly
prejudicial to the holders of Securities of such series not joining therein
(Section 512).
Within 120 days after the close of each fiscal year, the Company will be
required to deliver to the Indenture Trustee a certificate, signed by one of
several specified officers of the Company, stating whether or not such officer
has knowledge of any default under the Indenture and, if so, specifying each
such default and the nature and status thereof (Section 1005).
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture will be permitted to be made
only with the consent of the holders of not less than a majority in principal
amount of all outstanding Securities issued under the Indenture which are
affected by such modification or amendment; provided that no such modification
or amendment may, without the consent of the holder of each Security affected
thereby, (a) change the stated maturity of the principal of (or premium, if
any), or any installment of interest on any Security; (b) reduce the principal
amount of any Security, or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon declaration of
acceleration of the maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the holder of any such Security;
(c) change the place of payment, or the coin or currency, for payment of
principal of (or premium, if any) or interest on any Security; (d) impair the
right to institute suit for the enforcement of any payment on or with respect
to any Security; (e) reduce the above-stated percentage of outstanding
Securities of any series necessary to modify or amend the Indenture, to waive
compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set
forth in the Indenture; or (f) modify any of the foregoing provisions or any
of the provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect such action or
to provide that certain other provisions may not be modified or waived without
the consent of the holder of such Security (Section 902).
The holders of not less than a majority in principal amount of outstanding
Securities issued under the Indenture will have the right to waive compliance
by the Company with certain covenants in the Indenture (Section 1013).
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Indenture Trustee thereunder without the consent of any
holder of Securities for any of the following purposes: (a) to evidence the
succession of another person to the Company as obligor under the Indenture;
(b) to add to the covenants of the Company for the benefit of the holders of
all or any series of Securities or to surrender any right or power conferred
upon the Company in the Indenture; (c) to add Events of Default for the
benefit of the holders of all or any series of Securities; (d) to add or
change any provisions of the Indenture to facilitate the issuance of, or to
liberalize certain terms of, Securities in bearer form, or to permit or
facilitate the issuance of Securities in uncertificated form, provided that
such action will not adversely affect the interests of holders of the
Securities in any material respect; (e) to change or eliminate any provisions
of the Indenture, provided that
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<PAGE>
any such change or elimination will become effective only when there are no
Securities outstanding of any series created prior thereto which are entitled
to the benefit of such provision; (f) to secure the Securities; (g) to
establish the form or terms of Securities of any series; (h) to provide for
the acceptance of appointment by a successor Indenture Trustee or facilitate
the administration of the trusts under the Indenture by more than one
Indenture Trustee; (i) to cure any ambiguity, defect or inconsistency in the
Indenture, provided that such action will not adversely affect the interests
of holders of Securities of any series issued under such Indenture in any
material respect; or (j) to supplement any of the provisions of the Indenture
to the extent necessary to permit or facilitate defeasance and discharge of
any series of such Securities, provided that such action will not adversely
affect the interests of the holders of the Securities of any series in any
material respect (Section 901).
The Indenture will provide that in determining whether the holders of the
requisite principal amount of outstanding Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of
Securities, (a) the principal amount of an Original Issue Discount Security
that is deemed to be outstanding will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (b) the principal amount
of any Security denominated in a currency other than U.S. dollars that will be
deemed outstanding will be the U.S. dollar equivalent, determined on the issue
date for such Security, of the principal amount (or, in the case of Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Security of the amount determined as provided in (a) above), (c) the principal
amount of an Indexed Security that will be deemed outstanding will be the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security in the Indenture, and
(d) Securities owned by the Company or any other obligor upon the Securities
or any Subsidiary of the Company or of such other obligor will be disregarded
(Section 101).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to the Securities of a
series (except for the obligations to register the transfer or exchange of
such Securities, to replace temporary or mutilated, destroyed, lost or stolen
Securities, to maintain an office or agency in respect of such Securities and
to hold moneys for payment in trust) ("defeasance") (Section 1402), or (b) to
be released from its obligations with respect to such Securities under the
restrictions described under "--Certain Covenants" or, if provided pursuant to
the Indenture, its obligations with respect to any other covenant, and any
omission to comply with such obligations will not constitute an Event of
Default with respect to such Securities ("covenant defeasance") (Section
1403), in either case upon the irrevocable deposit by the Company with the
Indenture Trustee, in trust, of an amount, in such currency in which such
Securities are payable at stated maturity, or Government Obligations, or both,
applicable to such Securities which through the scheduled payment of principal
and interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on such
Securities, and any mandatory sinking fund or analogous payments thereon, on
the scheduled due dates therefore (Section 1404).
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the Indenture Trustee an opinion of
counsel to the effect that the holders of such Securities will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance or covenant defeasance
had not occurred, and such opinion of counsel, in the case of defeasance, will
be required to refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable United States federal income tax law
occurring after the date of the Indenture (Section 1404).
If after the Company has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Securities of any
series, (a) the holder of a Security of such series is entitled to, and
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does, elect pursuant to the Indenture or the terms of such Security to receive
payment in a currency, currency unit or composite currency other than that in
which such deposit has been made in respect of such Security, or (b) a
Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Security will be deemed to have been, and
will be, fully discharged and satisfied though the payment of the principal of
(and premium, if any) and interest on such Security as they become due out of
the proceeds yielded by converting the amount so deposited in respect of such
Security into the currency, currency unit or composite currency in which such
Security becomes payable as a result of such election based on the applicable
market exchange rate. "Conversion Event" means the cessation of use of (a) a
currency, currency unit or composite currency both by the government of the
country which issued such currency and for the settlement of transactions by a
central bank or other public institution of or within the international
banking community, (b) the ECU, both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Communities, or (c) any currency unit or composite currency other
than the ECU for the purposes for which it was established. All payments of
principal of (and premium, if any) and interest on any Security that is
payable in a currency other than U.S. dollars that ceases to be used by its
government of issuance will be in U.S. dollars (Section 101).
The Indenture provides that the Company will file with the Trustee copies of
the annual reports and other information, documents and reports which the
Company is required to file with the Commission pursuant to the Exchange Act.
If the Company is not required to file such reports and other information, the
Indenture provides that the Company shall file with the Trustee and cause to
be mailed to the holders of Securities (i) annual reports containing the
information required to be contained in an Annual Report on Form 10-K, (ii)
quarterly reports containing the information required to be contained in a
Quarterly Report on Form 10-Q and (iii) promptly after the occurrence of any
event required to be therein reported, such other reports containing
information required to be contained in a Current Report on Form 8-K. The
Company shall also comply with the requirements of Trust Indenture Act Section
314(a).
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in the form of
one or more global securities (the "Global Securities") that will be deposited
with, or on behalf of, a depositary identified in the applicable Prospectus
Supplement relating to such series. The Global Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to a series of
Securities will be described in the applicable Prospectus Supplement relating
to such series.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as other terms used herein for which no definition is
provided (Section 101).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction as of any particular time, the present value (discounted at the
rate of interest implicit in the terms of the lease) of the obligations of the
lessee under such lease for net rental payments during the remaining term of
the lease (including any period for which such lease has been extended). "Net
rental payments" under any lease for any period means the sum of the rental
and other payments required to be paid in such period by the lessee
thereunder, not including, however, any amounts required to be paid by such
lessee (whether or not designated as rental or additional rental) on account
of maintenance and repairs, insurance, taxes, assessments or similar charges.
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"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Net Tangible Assets" of the Company means, at any date, the
gross book value as shown by the accounting books and records of the Company
of all property both real and personal of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, (including
appropriate deductions for any minority interests in property of Subsidiaries
of the Company) less (a) the gross book value of all its licenses, patents,
patent applications, copyrights, trademarks, trade names, goodwill, non-
compete agreements or organizational expenses and other like intangibles, (b)
unamortized Debt discount and expense, (c) all reserves for depreciation,
obsolescence, depletion and amortization of its properties, and (d) all other
proper reserves which in accordance with GAAP should be provided in connection
with the business conducted by the Company or its Subsidiaries.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (without
duplication) (a) borrowed money, whether or not evidenced by bonds, notes,
debentures or similar instruments, (b) indebtedness secured by any Lien
existing on property owned by the Company or any Subsidiary, (c) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance deferred
and unpaid of the purchase price of any property or services (except any such
balance that constitutes an accrued expense or trade payable or accrued
liabilities arising in the ordinary course of business that are not overdue or
are being contested in good faith) or all conditional sale obligations or
obligations under any title retention agreement, (d) the principal amount of
all obligations of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock, or (e) any lease of
property by the Company or any Subsidiary as lessee which is reflected on the
Company's consolidated balance sheet as a capitalized lease in accordance with
GAAP to the extent, in the case of items of indebtedness under (a) through (e)
above, that any such items (other than letters of credit) would appear as a
liability on the Company's consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by the
Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor
or otherwise (other than for purposes of collection in the ordinary course of
business), Debt of another Person (other than the Company or any Subsidiary).
"Disqualified Stock" means, with respect to any Person, any Capital Stock of
such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (a) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
(b) is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock, or (c) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the Stated Maturity of the
series of Securities.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, in the United States, applied on a consistent basis.
"Government Obligations" means securities which are (a) direct obligations
of the United States of America or the government which issued the other
currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged, or (b) obligations of a
person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or the government which issued the other
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and will
also include a depository receipt issued by a bank or trust as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such 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
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<PAGE>
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Issue Date" means the date upon which a series of Securities was first
issued and authenticated under the Indenture.
"Lien" means any mortgage, charge, security interest, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other) or
preference, priority or other security agreement except: (a) liens for taxes,
assessments, levies and other governmental charges, including utility charges
and vault rentals, (i) which are not yet delinquent, or (ii) which are being
contested in good faith by all appropriate proceedings; (b) carriers',
warehousemen's, mechanics', materialmen's, repairmen's, brokers' or other like
liens (i) which do not remain unsatisfied or undischarged for a period of more
than 90 days, or (ii) which are being contested in good faith by all
appropriate proceedings; (c) attachment or judgment liens not giving rise to
or an Event of Default and which are being contested in good faith by
appropriate proceedings; (d) pledges or deposits in connection with workers
compensation, unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or self-
insurance arrangements or to obtain the benefit of, or to comply with, laws;
(e) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business; (f) any lien incurred in connection with
pollution control, tax-exempt, industrial revenue or similar financing; and
(g) easements, rights of way, restrictions, development orders, plats and
other similar encumbrances.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Property" means (a) any real property interest (all such
interests forming an integral part of a single development or operation being
considered as one interest), including any mining claims and leases, and any
plants, buildings or other improvements thereon, and any part thereof, that is
held by the Company or any Subsidiary and has a gross book value (without
deduction of any reserve for depreciation), on the date as of which the
determination is being made, exceeding 5% of Consolidated Net Tangible Assets
of the Company (other than any such interest that the board of directors of
the Company determines by resolution is not material to the business of the
Company and its Subsidiaries taken as a whole), or (b) any of the Capital
Stock or debt securities issued by any Significant Subsidiary.
"Sale and Leaseback Transaction" of any Person means an arrangement with any
lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which
has been or is being sold or transferred by such Person more than 270 days
after the acquisition thereof or the completion of construction or
commencement of operation thereof to such lender or investor or to any Person
to whom funds have been or are to be advanced by such lender or investor on
the security of such property or asset. The stated maturity of such
arrangement is the date of the last payment of rent or any other amount due
under such arrangement prior to the first date on which such arrangement may
be terminated by the lessee without payment of a penalty.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X, promulgated by the
Commission) of the Company.
"Stated Maturity," when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed
date on which the principal of such Security or such installment of principal
or interest is due and payable.
"Subsidiary" means an entity a majority of the partnership interests or a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company and/or one or more other Subsidiaries of the
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Company. For the purposes of this definition, "voting stock" means stock
having voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by reason of
any contingency.
CERTAIN INCOME TAX CONSIDERATIONS
The applicable Prospectus Supplement also will describe the principal United
States federal income tax considerations applicable to a United States
Investor of acquiring, owning and disposing of Securities, including any such
considerations relating to (a) principal (and premium, if any) and interest
payable with respect to the Securities, in a currency other than the United
States dollar, (b) the issuance of Securities with "original issue discount"
(as defined for United States federal income tax purposes), if applicable, and
(c) the inclusion of any special terms in Securities that may have a material
effect for United States federal income tax purposes.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Securities being offered hereby: (i) directly to
purchasers; (ii) through agents; (iii) through dealers; (iv) through
underwriters; or (v) through a combination of any such methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions either: (i) at a fixed price or prices which may be
changed; (ii) at market prices prevailing at the time of sale; (iii) at prices
related to such prevailing market prices; or (iv) at negotiated prices.
Offers to purchase Securities may be solicited directly by the Company.
Offers to purchase Securities may also be solicited by agents designated by
the Company from time to time. Any such agent, who may be deemed to be an
"underwriter" as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer, who may be deemed to be an "underwriter" as
that term is defined in the Securities Act may then resell such Securities to
the public at varying prices to be determined by such dealer at the time of
resale.
If an underwriter or underwriters are utilized in the sales, the Company
will execute an underwriting agreement with such underwriters at the time of
sale of them and the name of the underwriters will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales
of the Securities in respect of which this Prospectus is delivered to the
public.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that may be entered into with the Company, to indemnification by
the Company against certain civil liabilities, including liabilities under the
Securities Act.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers or other persons to solicit offers by certain
institutions to purchase Securities pursuant to contracts providing for
payment and delivery on a future date or dates. Institutions with which such
contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others. The obligations of any purchaser under any such
contract will not be subject to any conditions that (a) the purchase of the
Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject and (b) if the Securities
are also being sold to underwriters,
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the Company shall have sold to such underwriters the Securities not sold for
delayed delivery. The underwriters, dealers and such other persons will not
have any responsibility in respect to the validity or performance of such
contracts.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon for the
Company by Hughes & Luce, L.L.P.
EXPERTS
The audited consolidated financial statements incorporated by reference in
this Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
included in reliance upon the authority of said firm as experts in giving said
report.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference and related
Prospectus Supplements may include certain statements that may constitute
"forward-looking" information (as defined in the Private Securities Litigation
Reform Act of 1995). Words such as "anticipate", "estimate", "project" and
similar expressions are intended to identify such forward-looking statements.
Forward-looking statements may be included in this Prospectus in, among other
places, under "The Company" and "Use of Proceeds" and in certain portions of
the Company's Annual Report on Form 10-K and subsequent reports incorporated
herein by reference. Such forward-looking statements may include, but are not
limited to statements concerning estimates of current and future results of
operations, earnings, the development of new production facilities, future
capacity under the Company's credit arrangements, and future capital
expenditure and liquidity requirements.
Such forward-looking statements are subject to certain risks, uncertainties
and assumptions, including without limitation those discussed under "Outlooks
and Uncertainties" in the Company's Annual Report on Form 10-K incorporated
herein by reference and the following: the volatility of fertilizer demand and
prices, the cyclicality and seasonality of the Company's business, the
Company's dependence on natural gas, the costs of compliance with and the
possibility of additional environmental laws regulating the fertilizer
business, and the competitive nature of the fertilizer business. Should one or
more of these risks materialize, or should any of the underlying assumptions
prove incorrect, actual results of current and future operations may vary
materially from those anticipated, estimated or projected. Prospective
investors are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of their dates. The Company assumes no
obligation to update any such forward-looking statements.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 3
Ratio of Earnings to Fixed Charges......................................... 3
Use of Proceeds............................................................ 3
Description of Securities.................................................. 4
Certain Income Tax Considerations.......................................... 14
Plan of Distribution....................................................... 14
Legal Matters.............................................................. 15
Experts.................................................................... 15
Special Note Regarding Forward-Looking Statements.......................... 16
</TABLE>
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C> <C>
Securities and Exchange Commission registration fee $ 90,909
* Printing and engraving 35,000
* Legal fees and charges 60,000
* Trustees' fees and expenses 14,000
* Accounting services 25,000
* Rating agency fees 175,000
* Miscellaneous 10,000
--------
$409,909
========
</TABLE>
_______________
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Mississippi law, a corporation may indemnify directors and officers
against liability incurred in a proceeding if (a) he or she conducted himself or
herself in good faith; (b) he or she reasonably believed that his or her conduct
was (i) in the corporation's best interests (where the conduct was in his or her
official capacity) or (ii) not opposed to the corporation's best interests (in
all other cases); and (c) in the case of any criminal proceeding, he or she had
no reasonable cause to believe his or her conduct was unlawful. However,
Mississippi law provides that a corporation may not indemnify a director or an
officer (a) in connection with a proceeding by or in the right of the
corporation in which the director or officer was adjudged liable to the
corporation or (b) in connection with any other proceeding charging improper
personal benefit to such director or officer, whether or not involving action in
his or her official capacity, in which such director or officer was adjudged
liable on the basis that personal benefit was improperly received by him or her.
Under Mississippi law, a corporation must indemnify a director or officer who
was wholly successful, on the merits or otherwise, in the defense of any
proceeding to which such director or officer was a party because he or she is or
was a director or officer of the corporation against reasonable expenses
incurred by such director or officer in connection with the proceeding.
The Company has obtained a directors' and officers' liability and
corporation reimbursement policy which (subject to certain limits and
deductibles) (i) insures officers and directors of the Company against loss
arising from certain claims made against them by reason of their being directors
or officers, and (ii) insures the Company against loss which it may be required
or permitted to pay as indemnification due its directors for certain claims.
II-1
<PAGE>
Insofar as indemnification by the Company for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed 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.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
--------- -----------------------
1** Form of Underwriting Agreement
2.1 Asset Purchase Agreement, dated as of May 21, 1996, by and
among the Company, Mississippi Acquisition I, Inc.,
Mississippi Acquisition II, Inc., Eddy Potash, Inc., and
New Mexico Potash Corporation; filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed September 3,
1996, SEC File No. 0-20411, and incorporated herein by
reference.
2.2 Agreement and Plan of Merger and Reorganization dated as of
August 27, 1996, by and among the Company, MISS SUB, INC.,
and First Mississippi Corporation filed as Exhibit 2.2 to
the Company's Annual Report on Form 10-K for the year ended
June 30, 1996, SEC File No. 0-20411, and incorporated
herein by reference.
4.1* Form of Indenture
4.2 Credit Agreement, dated December 23, 1996, among the
Company, Mississippi Phosphates Corporation, Mississippi
Potash, Inc., and Harris Trust and Savings Bank, as
administrative agent, Bank of Montreal as syndication
agent, Caisse Nationale de Credit Agricole and CIBC Inc.,
as co-agents, and other lenders party thereto filed as
Exhibit 10.2 to the Company's Current Report on Form 8-K,
filed on January 3, 1997, SEC File No. 0-20411, and
incorporated herein by reference.
4.3 Credit Agreement, dated December 23, 1996, among First
Mississippi Corporation, AMPRO Fertilizer, Inc., and Harris
Trust and Savings Bank, as administrative agent, Bank of
Montreal as syndication agent, Caisse Nationale de Credit
Agricole and CIBC Inc., as co-agents, and other lenders
party thereto filed as Exhibit 10.1 to the Company's
Current Report of Form 8-K, filed on January 3, 1997, SEC
File No. 0-20411, and incorporated herein by reference.
II-2
<PAGE>
The registrant hereby undertakes to file with the
Commission, upon request, copies of any constituent
instruments defining the rights of holders of long-term
debt of the registrant or its subsidiaries that have not
been filed herewith because the amounts represented thereby
are less than 10% of the total assets of the registrant and
its subsidiaries on a consolidated basis.
5* Opinion of Hughes & Luce, L.L.P. with respect to the
legality of the securities being registered
12* Statement regarding computation of ratios
23.1* Consent of Arthur Andersen LLP
23.2 Consent of Hughes & Luce, L.L.P. (included in Exhibit
5)
24 Power of Attorney, included in signature pages hereto
25* Statement of Eligibility of Trustee on Form T-1
- ---------------
* Filed herewith
** To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein in connection with any underwritten offering of a Security.
ITEM 17. UNDERTAKINGS.
(a) 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;
(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
the Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar amount of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated offering range may be
reflected in the form of a prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in
II-3
<PAGE>
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at the 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.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
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 by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel in 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
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 Amendment No. 1
to this Registration Statement has been signed by or on behalf of the
undersigned, thereunto duly authorized, in the City of Yazoo City, State of
Mississippi, on November , 1997.
MISSISSIPPI CHEMICAL CORPORATION
By: /s/ Timothy A. Dawson
---------------------
Timothy A. Dawson
Vice-President-Finance
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Timothy A. Dawson and Robert E. Jones his or her true and lawful attorney-in-
fact and agent, each acting alone, with full power of substitution and
resubstitution for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all Amendments (including post-effective
Amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing appropriate or necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person
hereby ratifying and confirming all that said attorney-in-fact and agent, acting
alone, or his or her 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 below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<S> <C> <C>
* Director, President November, 1997
- --------------------- and Chief Executive Officer
Charles O. Dunn (principal executive officer)
/s/ Timothy A. Dawson Vice-President Finance November, 1997
- ---------------------- (principal financial and
Timothy A. Dawson accounting officer)
* Director, Chairman of the Board November, 1997
- ----------------------
Coley L. Bailey
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
* Director, Vice Chairman November, 1997
- -------------------------- of the Board
John Sharp Howie
* Director November, 1997
- --------------------------
John W. Anderson
* Director November, 1997
- --------------------------
Haley Barbour
* Director November, 1997
- --------------------------
Frank R. Burnside, Jr.
* Director November, 1997
- --------------------------
Robert P. Dixon
* Director November, 1997
- --------------------------
W. R. Dyess
* Director November, 1997
- --------------------------
Woods E. Eastland
* Director November, 1997
- --------------------------
George D. Penick, Jr.
* Director November, 1997
- --------------------------
David M. Ratcliffe
* Director November, 1997
- --------------------------
Wayne Thames
</TABLE>
- --------------------
* By Timothy A. Dawson
Attorney-in-Fact
II-6
<PAGE>
Exhibit 4.1
-----------
MISSISSIPPI CHEMICAL CORPORATION
Issuer
---------------
Indenture
Dated as of November __, 1997
---------------
HARRIS TRUST AND SAVINGS BANK
Trustee
Debt Securities
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES...............................................................................
RECITALS OF MCC....................................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION............................................................ 1
SECTION 101 Definitions............................................................ 1
SECTION 102. Compliance Certificates and Opinions................................... 12
SECTION 103. Form of Documents Delivered to Trustee................................. 13
SECTION 104. Acts of Holders........................................................ 13
SECTION 105. Notices, etc., to Trustee and MCC...................................... 15
SECTION 106. Notice to Holders; Waiver.............................................. 15
SECTION 107. Effect of Headings and Table of Contents............................... 16
SECTION 108. Successors and Assigns................................................. 16
SECTION 109. Separability Clause.................................................... 16
SECTION 110. Benefits of Indenture.................................................. 16
SECTION 111. Governing Law.......................................................... 16
SECTION 112. Legal Holidays......................................................... 16
SECTION 113. Immunity of Shareholders, Directors, Officers and Agents of MCC........ 16
ARTICLE TWO SECURITIES FORMS....................................................... 17
SECTION 201. Forms of Securities.................................................... 17
SECTION 202. Form of Trustee's Certificate of Authentication........................ 17
SECTION 203. Securities Issuable in Global Form..................................... 17
ARTICLE THREE THE SECURITIES......................................................... 18
SECTION 301. Amount; Issuable in Series............................................. 18
SECTION 302. Denominations.......................................................... 22
SECTION 303. Execution, Authentication, Delivery and Dating......................... 22
SECTION 304. Temporary Securities................................................... 24
SECTION 305. Registration, Registration of Transfer and Exchange.................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....................... 28
SECTION 307. Payment of Interest; Interest Rights Preserved......................... 29
SECTION 308. Persons Deemed Owners.................................................. 30
SECTION 309. Cancellation........................................................... 31
SECTION 310. Computation of Interest................................................ 31
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE FOUR SATISFACTION AND DISCHARGE............................................. 31
SECTION 401. Satisfaction and Discharge of Indenture................................ 31
SECTION 402. Application of Trust Funds............................................. 33
ARTICLE FIVE REMEDIES............................................................... 33
SECTION 501. Events of Default...................................................... 33
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................... 35
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee........ 36
SECTION 504. Trustee May File Proofs of Claim....................................... 37
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.......................................................... 37
SECTION 506. Application of Money Collected......................................... 38
SECTION 507. Limitation on Suits.................................................... 38
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, and Interest.......................................... 39
SECTION 509. Restoration of Rights and Remedies..................................... 39
SECTION 510. Rights and Remedies Cumulative......................................... 39
SECTION 511. Delay or Omission Not Waiver........................................... 39
SECTION 512. Control by Holders of Securities....................................... 39
SECTION 513. Waiver of Past Defaults................................................ 40
SECTION 514. Waiver of Usury, Stay or Extension Laws................................ 40
SECTION 515. Undertaking for Costs.................................................. 40
ARTICLE SIX THE TRUSTEE............................................................ 41
SECTION 601. Notice of Defaults..................................................... 41
SECTION 602. Certain Rights of Trustee.............................................. 41
SECTION 603. Not Responsible for Recitals or Issuance of Securities................. 43
SECTION 604. May Hold Securities.................................................... 43
SECTION 605. Money Held in Trust.................................................... 43
SECTION 606. Compensation and Reimbursement......................................... 43
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests......... 44
SECTION 608. Resignation and Removal; Appointment of Successor...................... 44
SECTION 609. Acceptance of Appointment by Successor................................. 46
SECTION 610. Merger, Conversion, Consolidation or Succession to Business............ 47
SECTION 611. Appointment of Authenticating Agent.................................... 47
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND MCC.......................... 49
SECTION 701. Disclosure of Names and Addresses of Holders........................... 49
SECTION 702. Reports by Trustee..................................................... 49
SECTION 703. Reports by MCC......................................................... 49
SECTION 704. MCC to Furnish Trustee Names and Addresses of Holders.................. 50
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE....................................................................... 50
SECTION 801. Consolidations and Mergers of MCC and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.................... 50
SECTION 802. Rights and Duties of Successor Entity.................................. 51
SECTION 803. Securities to Be Secured in Certain Events............................. 51
SECTION 804. Officers' Certificate and Opinion of Counsel........................... 51
ARTICLE NINE SUPPLEMENTAL INDENTURES................................................ 52
SECTION 901. Supplemental Indentures without Consent of Holders..................... 53
SECTION 902. Supplemental Indentures with Consent of Holders........................ 53
SECTION 903. Execution of Supplemental Indentures................................... 54
SECTION 904. Effect of Supplemental Indentures...................................... 54
SECTION 905. Conformity with TIA.................................................... 54
SECTION 906. Reference in Securities to Supplemental Indentures..................... 54
SECTION 907. Notice of Supplemental Indentures...................................... 55
ARTICLE TEN COVENANTS.............................................................. 55
SECTION 1001. Payment of Principal, Premium, if any, and Interest.................... 55
SECTION 1002. Maintenance of Office or Agency........................................ 55
SECTION 1003. Money for Securities Payments to Be Held in Trust...................... 56
SECTION 1004. Existence.............................................................. 57
SECTION 1005. Statement as to Compliance............................................. 57
SECTION 1006. Limitation on Liens.................................................... 57
SECTION 1007. Limitation on Sale and Leaseback Transactions.......................... 59
SECTION 1008. Waiver of Certain Covenants............................................ 59
ARTICLE ELEVEN REDEMPTION OF SECURITIES............................................... 60
SECTION 1101. Applicability of Article............................................... 60
SECTION 1102. Election to Redeem; Notice to Trustee.................................. 60
SECTION 1103. Selection by Trustee of Securities to Be Redeemed...................... 60
SECTION 1104. Notice of Redemption................................................... 61
SECTION 1105. Deposit of Redemption Price............................................ 62
SECTION 1106. Securities Payable on Redemption Date.................................. 62
SECTION 1107. Securities Redeemed in Part............................................ 62
ARTICLE TWELVE SINKING FUNDS.......................................................... 63
SECTION 1201. Applicability of Article............................................... 63
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.................. 63
SECTION 1203. Redemption of Securities for Sinking Fund.............................. 63
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS................................... 64
SECTION 1301. Applicability of Article............................................... 64
SECTION 1302. Repayment of Securities................................................ 64
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 1303. Exercise of Option..................................................... 64
SECTION 1304. When Securities Presented for Repayment Become Due and Payable......... 65
SECTION 1305. Securities Repaid in Part.............................................. 65
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE................................... 66
SECTION 1401. Applicability of Article; MCC's Option to Effect Defeasance or
Covenant Defeasance.................................................... 66
SECTION 1402. Defeasance and Discharge............................................... 66
SECTION 1403. Covenant Defeasance.................................................... 67
SECTION 1404. Conditions to Defeasance or Covenant Defeasance........................ 67
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions......................................... 69
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES..................................... 70
SECTION 1501. Purposes for Which Meetings May Be Called.............................. 70
SECTION 1502. Call, Notice and Place of Meetings..................................... 70
SECTION 1503. Persons Entitled to Vote at Meetings................................... 70
SECTION 1504. Quorum; Action......................................................... 70
SECTION 1505. Determination of Voting Rights; Conduct of Meetings.................... 72
SECTION 1506. Counting Votes and Recording Action of Meetings........................ 72
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
</TABLE>
iv
<PAGE>
MISSISSIPPI CHEMICAL CORPORATION
Reconciliation and tie between TIA and Indenture
<TABLE>
<CAPTION>
TIA Section Indenture
<S> <C>
Section 310(a)(1).......................................................607
(a)(2)..........................................................607
(b)...........................................................607,6
Section 312(a)..........................................................704
Section 312(c)..........................................................701
Section 313(a)..........................................................702
(c).............................................................702
Section 314(a)..........................................................703
(a)(4).........................................................1005
(c)(1)..........................................................102
(c)(2)..........................................................102
(e).............................................................102
Section 315(b)..........................................................601
Section 316(a) (last sentence)...........................("Outstanding")101
(a)(1)(A).......................................................512
(a)(1)(B).......................................................513
(b).............................................................508
Section 317(a)(1).......................................................503
(a)(2)..........................................................504
Section 318(a)..........................................................111
(c).............................................................111
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Section 318(c) of TIA provides that the provisions of Sections 310 to and
including 317 of TIA are a part of and govern every qualified indenture, whether
or not physically contained therein.
v
<PAGE>
INDENTURE, dated as of November __, 1997, between MISSISSIPPI CHEMICAL
CORPORATION, a Mississippi corporation ("MCC"), having its principal office at
3688 Highway 49 East, Yazoo City, Mississippi 39194, and HARRIS TRUST AND
SAVINGS BANK, an Illinois banking corporation, as Trustee hereunder ("Trustee"),
having its Corporate Trust Office at 311 West Monroe Street, Chicago, Illinois
60606.
RECITALS OF MCC
MCC deems it appropriate to issue from time to time for its lawful
purposes debt securities evidencing its unsecured indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of Securities, not exceeding $300,000,000 in
aggregate principal amount, to bear interest at the rates or formulas, to mature
at such times and to have such other provisions as shall be fixed as hereinafter
provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, which are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of MCC,
in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
Securities by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all holders of Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture,
-----------
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article One have the meanings
-----------
assigned to them in this Article One, and include the plural as well as the
-----------
singular;
(b) all other terms used herein that are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
1
<PAGE>
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
The following terms shall have the indicated respective meanings:
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
- -----------
"actual knowledge" has the meaning specified in Section 602.
-----------
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
-----------
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction as of any particular time, the present value (discounted at the rate
of interest implicit in the terms of the lease) of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended). "Net rental
payments" under any lease for any period means the sum of the rental and other
payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments or similar charges.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
-----------
"Board of Directors" means the board of directors of MCC, the executive
committee or any other committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of MCC to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
2
<PAGE>
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
- -----------
holiday nor a day on which banking institutions in the state where the Trustee
has its principal office or such Place of Payment or particular location are
authorized or required by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible or exchangeable for corporate stock), warrants
or options to purchase any thereof.
"CEDEL" means Central de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties on such date.
"Common Depositary" has the meaning specified in Section 304(b).
--------------
"Common Shares" means, with respect to any Person, Capital Stock issued by
such Person other than Preferred Stock.
"Consolidated Net Tangible Assets" of MCC means, at any date, the
gross book value as shown by the accounting books and records of MCC of all
property both real and personal of MCC and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP (including appropriate deductions for
any minority interests in property of Subsidiaries of MCC), less (a) the gross
book value of all its licenses, patents, patent applications, copyrights,
trademarks, trade names, goodwill, noncompete agreements or organizational
expenses and other like intangibles, (b) unamortized Debt discount and expense,
(c) all reserves for depreciation, obsolescence, depletion and amortization of
its properties, and (d) all other proper reserves against assets, which in
accordance with GAAP should be provided in connection with the business
conducted by MCC and its Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 311 West Monroe
Street, Chicago, Illinois 60606.
"Corporation" includes corporations, partnerships, limited liability
companies and trusts.
"covenant defeasance" has the meaning specified in Section 1403.
------------
"Custodian" has the meaning specified in Section 501.
-----------
3
<PAGE>
"Debt" of MCC or any Subsidiary means any indebtedness of MCC or any
Subsidiary, whether or not contingent, in respect of (without duplication) (a)
borrowed money, whether or not evidenced by bonds, notes, debentures or similar
instruments, (b) indebtedness secured by any Lien existing on property owned by
MCC or any Subsidiary, (c) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services (except any such balance that constitutes an accrued
expense or trade payable or accrued liabilities arising in the ordinary course
of business that are not overdue or are being contested in good faith) or all
conditional sale Obligations or Obligations under any title retention agreement,
(d) the principal amount of all obligations of MCC or any Subsidiary with
respect to redemption, repayment or other repurchase of any Disqualified Stock,
or (e) any lease of property by MCC or any Subsidiary as lessee that is
reflected on MCC's consolidated balance sheet as a capitalized lease in
accordance with GAAP to the extent, in the case of items of indebtedness under
(a) through (e) above, that any such items (other than letters of credit) would
appear as a liability on MCC's consolidated balance sheet in accordance with
GAAP, and also includes, to the extent not otherwise included, any obligation by
MCC or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), Debt of another Person (other than MCC or any Subsidiary).
"default" has the meaning specified in Section 601.
-----------
"Defaulted Interest" has the meaning specified in Section 307.
-----------
"defeasance" has the meaning specified in Section 1402.
------------
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (a) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b)
is convertible into or exchangeable or exercisable for Debt or Disqualified
Stock, or (c) is redeemable at the option of the holder thereof, in whole or in
part, in each case on or prior to the Stated Maturity of the series of
Securities involved.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"Euroclear" means Morgan Guaranty Trust of New York, Brussels Office,
or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Article Five.
------------
4
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Exchange Date" has the meaning specified in Section 304.
-----------
"executive officer" means such officer or officers of MCC as are
certified to the Trustee from time to time by the Secretary or any Assistant
Secretary of MCC.
"Foreign Currency" means any currency, currency unit or composite
currency issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis.
"Government Obligations" means securities which are (a) direct
obligations of the United States or the government that issued the Foreign
Currency in which Securities of a particular series are payable, for the payment
of which its full faith and credit is pledged, or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States or such government that issued the Foreign Currency in which
Securities of such series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States or such
other government, 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 as custodian with respect to any such Government Obligation
or a specific payment of interest on or principal of any such 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
Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Holder" means the Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
-----------
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
-----------
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee,
5
<PAGE>
regardless of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had become such Trustee but to
which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest," when used with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of Interest on such Security.
"Issue Date" means the date upon which a series of Securities is first
issued and authenticated under this Indenture.
"Lien" means any mortgage, charge, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other) or other security agreement except:
(a) liens for taxes, levies, assessments and other governmental
charges, including utility charges (i) that are not yet delinquent, or (ii)
that are being contested in good faith by appropriate proceedings;
(b) carrier's, warehousemen's, mechanic's, materialmen's,
repairmen's, brokers' or other like liens (i) that do not remain
unsatisfied or undischarged for a period of more than 90 days, or (ii) that
are being contested in good faith by appropriate proceedings;
(c) attachment or judgment liens not giving rise to a default or
an Event of Default and that are being contested in good faith by
appropriate proceedings;
(d) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation
and deposits securing liability to insurance carriers under insurance or
self-insurance arrangements or to obtain the benefit of, or to comply with
laws;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(f) any Lien incurred in connection with pollution control, tax-
exempt, industrial revenue or similar financing; and
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<PAGE>
(g) easements, rights of way, restrictions, development orders,
plats and other similar encumbrances.
"mandatory sinking fund payment" has the meaning specified in
Section 1201.
- ------------
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"MCC" means Mississippi Chemical Corporation until a successor entity
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "MCC" shall mean such successor entity.
"MCC Request" and "MCC Order" mean, respectively, a written request or
order signed in the name of MCC by two executive officers of MCC, and delivered
to the Trustee.
"Notice of Default" has the meaning specified in Section 501.
-----------
"Officer's Certificate" means a certificate signed by an executive
officer of MCC and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be outside counsel for MCC or who may be an employee of MCC and who shall be
reasonably satisfactory to the Trustee.
"optional sinking fund payment" has the meaning specified in
Section 1201.
- ------------
"Original Issue Discount Security" means any Security that is issued
at a price lower than the principal amount payable on the Stated Maturity
thereof and that provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.
-----------
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled or deemed canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than MCC) in trust or set aside and segregated in trust by MCC (if
MCC shall act as its own Paying Agent) for the Holders of such Securities,
provided that, if such Securities are to be redeemed, notice
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<PAGE>
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Sections 1402
-------------
and 1403, with respect to which MCC has effected defeasance and/or covenant
----
defeasance as provided in Article Fourteen;
----------------
(d) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of MCC; and
(e) Securities converted into Common Shares or Preferred Shares
pursuant to or in accordance with this Indenture if the terms of such
Securities provide for convertibility pursuant to Section 301;
-----------
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (a) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (b) the principal amount of any Security denominated in
-----------
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
-----------
Security is originally issued by MCC as set forth in an Officers' Certificate
relating to exchange rates, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (a) above) of
such Security, (c) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (d) Securities owned by MCC or any
-----------
other obligor upon Securities or any Affiliate of MCC or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities that the Trustee knows to be so owned shall
be so disregarded. Securities so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not MCC or any other obligor upon Securities or any Affiliate of
MCC or of such other obligor.
8
<PAGE>
"Paying Agent" means any Person (including MCC acting as Paying Agent)
authorized by MCC to pay the principal of (and premium, if any) or interest on
any Securities on behalf of MCC.
"Permitted Short-Term Investments" means investments in obligations,
maturing not more than 180 days after the date of acquisition:
(a) issued by the Government the United States, or an
instrumentality or agency thereof and guaranteed fully as to principal,
premium, if any, and interest by the United States;
(b) term deposits, guaranteed investment certificates,
certificates of deposit, bankers' acceptances or bearer deposit notes of
any financial institution that have been rated at least A-1 by Standard &
Poor's Corporation ("S&P") or at least P-1 or the equivalent thereof by
Moody's Investors Service, Inc. ("Moody's");
(c) commercial paper issued by a corporation organized and
existing under the laws of the United States with a rating of at least A-1
by S&P or P-1 by Moody's ;
(d) any asset-backed debt securities with ratings of at least A-1
by S&P or P-1 by Moody's; and
(e) notes, bonds, debentures or other debt securities issued by
any United States corporation with ratings of at least A-1 by S&P or P-1 by
Moody's;
provided that in the event of a rating downgrade on any Permitted Short-Term
Investment by S&P or Moody's during the period in which the Permitted Short-Term
Investment is held, MCC acting reasonably, shall have the full discretion to
retain the Permitted Short-Term Investment to maturity.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to Securities of or within any
series, means the place or places where the principal of (and premium, if any)
and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
- ------------ ----
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
-----------
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same Debt as the mutilated, destroyed, lost or stolen Security.
9
<PAGE>
"Preferred Shares" means, with respect to any Person, Capital Stock
issued by such Person that is entitled to a preference or priority over any
other Capital Stock issued by such Person upon any distribution of such Person's
assets, whether by dividend or upon liquidation.
"Principal Property" means (a) any real property interest (all such
interests forming an integral part of a single development or operation being
considered as one interest), including any mining claims and leases, and any
plants, buildings or other improvements thereon, and any part thereof, that is
held by MCC or any Subsidiary and has a gross book value (without deduction of
any reserve for depreciation), on the date as of which the determination is
being made, exceeding 5% of Consolidated Net Tangible Assets of MCC (other than
any such interest that the Board of Directors determines by resolution is not
material to the business of MCC and its Subsidiaries taken as a whole), or (b)
any of the Capital Stock or debt securities issued by any Significant
Subsidiary.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on Securities of or within any series means the date specified for that
purpose as contemplated by Section 301, whether or not a Business Day.
-----------
"Repayment Date," when used with respect to any Security to be repaid
at the option of the Holder, means the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price," when used with respect to any Security to be repaid
at the option of the Holder, means the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any corporate trust officer,
the controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such Officers' knowledge and
familiarity with the particular subject.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 270 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any Person to whom funds
10
<PAGE>
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement is the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the Lessee without
payment of a penalty.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
-----------
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
by the Commission) of MCC.
"Special Record Date" for the payment of any Defaulted Interest on
Securities of or within any series means a date fixed by the Trustee pursuant to
Section 307.
- -----------
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means an entity a majority of the interests or a majority
of the outstanding voting stock of which is owned, directly or indirectly, by
MCC or by one or more other Subsidiaries of MCC. For the purposes of this
definition, "voting stock" means stock having voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"successor entity" has the meaning specified in Section 801.
-----------
"TIA" means the Trust Indenture Act of 1939, as amended and as in
force at the date as of which this Indenture was executed, except as provided in
Section 905.
- -----------
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
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<PAGE>
"Trustee" as used with respect to Securities of any series shall mean only the
Trustee with respect to Securities of that series.
"25% Excess Proceeds" has the meaning specified in Section 1011.
------------
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
-----------
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
-----------
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock of which (other than directors'
qualifying shares) shall at the time be owned by such Person or by one or more
Wholly Owned Subsidiaries of such Person or by such Person and one or more
Wholly Owned Subsidiaries of such Person.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by MCC to the Trustee to take any action under any
provision of this Indenture, MCC shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with; provided that in the case
of any such application or request as to which the furnishing of such
certificate and opinion is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1008) shall include:
------------
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
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<PAGE>
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(d) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of MCC may be based, insofar
as it relates to legal matters, upon an Opinion of Counsel, or a certificate or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel or certificate or representations may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of MCC stating that the
information as to such factual matters is in the possession of MCC, unless such
counsel knows that the certificate or opinion or representations as to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders. (a) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Outstanding Securities of all
series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are received by the Trustee and,
where it is hereby expressly required, to MCC. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be
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<PAGE>
sufficient for any purpose of this Indenture. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1506.
------------
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If MCC shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other
Act, MCC may, at its option, in or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but MCC shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than
the date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
In the absence of any such record date fixed by MCC, regardless
as to whether a solicitation of the Holders is occurring on behalf of MCC
or any Holder, the Trustee may, at its option, fix in advance a record date
for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but
the Trustee shall have no obligation to do so. Any such record date shall
be a date not more than 30 days prior to the first solicitation of Holders
generally in connection therewith and no later than the date of such
solicitation.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof
14
<PAGE>
or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent, any Authenticating Agent or MCC in reliance thereon, whether
or not notation of such action is made upon such Security.
Section 105. Notices, etc., to Trustee and MCC. Any request,
---------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by MCC shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at the corporate trust office.
(b) MCC by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to MCC addressed to it at
the address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in writing to
the Trustee by MCC.
Section 106. Notice to Holders; Waiver. Where this Indenture
-------------------------
provides for notice of any event to Holders of Securities by MCC or the Trustee,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each such
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders of Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders of Securities.
Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Securities as shall be
given with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent, waiver
or other action required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with
15
<PAGE>
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 108. Successors and Assigns. All covenants and agreements
----------------------
in this Indenture by MCC shall bind its successors and assigns, whether so
expressed or not.
Section 109. Separability Clause. In case any provision in this
-------------------
Indenture or in any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 110. Benefits of Indenture. Nothing in this Indenture or
---------------------
in Securities, express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 111. Governing Law. This Indenture and Securities shall be
-------------
governed by and construed in accordance with the law of the State of New York.
This Indenture is subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 112. Legal Holidays. In any case where any Interest
--------------
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (unless otherwise provided in any Security of any series) payment
of interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity; provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
Section 113. Immunity of Shareholders, Directors, Officers and Agents
--------------------------------------------------------
of MCC. The obligations of MCC under the Indenture and Securities and all
- ------
documents delivered in the name of MCC in connection herewith and therewith do
not and shall not constitute personal obligations of the directors, officers,
employees, agents or shareholders of MCC or any of them, and shall not involve
any claim against or personal liability on the part of any of them, and all
persons including the Trustee shall look solely to the assets of MCC for the
payment of any claim thereunder or for the performance thereof and shall not
seek recourse against such directors, officers, employees, agents or
shareholders of MCC or any of them or any of their personal assets for such
satisfaction. The performance of the obligations of MCC under the Indenture and
Securities and all documents delivered in the name of MCC in connection
16
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therewith shall not be deemed a waiver of any rights or powers of MCC, its
directors or its shareholders under MCC's Articles of Incorporation.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms of Securities. Securities of each series shall
-------------------
be in substantially the forms as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 301, shall have such appropriate
-----------
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as MCC may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Securities may be listed,
or to conform to usage. If the forms of Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the MCC Order
contemplated by Section 303 for the authentication and delivery of such
-----------
Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificate of authentication shall be in
-----------
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------
as Trustee
By
----------------------
Authorized Signatory
Section 203. Securities Issuable in Global Form. If Securities of
----------------------------------
or within a series are issuable in global form, as contemplated by Section 301,
-----------
then, notwithstanding clause (h) of Section 301 and the provisions of Section
----------- -------
302, any such Security shall represent such Outstanding Securities of such
- ---
series as shall be specified therein and may provide that it shall
17
<PAGE>
represent the aggregate amount of Outstanding Securities of such series from
time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in a MCC Order to be delivered to the Trustee pursuant to Section 303 or 304.
----------- ---
Subject to the provisions of Section 303 and, if applicable, Section 304, the
----------- -----------
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable MCC Order. If a MCC Order pursuant to Section 303 or 304 has
----------- ---
been, or simultaneously is, delivered, any instructions by MCC with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
-----------
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
-----------
Security represented by a Security in global form if such Security was never
issued and sold by MCC and MCC delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 102
-----------
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last sentence of Section 303.
-----------
Notwithstanding the provisions of Section 307, unless otherwise
-----------
specified as contemplated by Section 301, payment of principal of (and premium,
-----------
if any) and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
-----------
in the preceding paragraph, MCC, the Trustee and any agent of MCC and the
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security, the Holder of such
permanent global Security in registered form.
ARTICLE THREE
THE SECURITIES
Section 301. Amount; Issuable in Series. The aggregate principal
--------------------------
amount of Securities which may be authenticated and delivered under this
Indenture is $300,000,000.
Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
-----------
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (a), (b) and (o) below), if
so provided, may be determined from time to time by MCC with respect to unissued
Securities of the series when issued from time to time):
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<PAGE>
(a) the designation of Securities of the series (which shall
distinguish Securities of such series from all other series of Securities);
(b) the aggregate principal amount of Securities of the series
that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration or transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 or 1305);
----------- --- --- --- ---- ----
(c) the date or dates, or the method by which such date or dates
will be determined, on which the principal of Securities of the series
shall be payable;
(d) the rate or rates at which Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Security on any Interest
Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(e) the place or places, if any, other than or in addition to the
Borough of Manhattan, New York City, where the principal of (and premium,
if any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Securities of
the series may be surrendered for registration of transfer, exchange or
conversion and, if different from the location specified in Section 105,
-----------
notices or demands to or upon MCC in respect of Securities of the series
and this Indenture may be served;
(f) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of MCC, if MCC is to have the option;
(g) the obligation, if any, of MCC to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the series
shall be issuable;
19
<PAGE>
(i) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(j) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
-----------
or, if applicable, the portion of the principal amount of Securities of the
series that is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(k) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest or
Additional Amounts, if any, on Securities of the series shall be payable or
in which Securities of the series shall be denominated;
(l) whether the amount of payments of principal of (and premium,
if any) or interest, if any, on Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(m) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on Securities of the series are to be payable,
at the election of MCC or a Holder thereof, in a currency or currencies,
currency unit or units or composite currency or currencies other than that
in which such Securities are denominated or stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are denominated or stated
to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so
payable;
(n) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(o) any deletions from, modifications of or additions to the
Events of Default or covenants of MCC with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(p) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series
are to be issuable in permanent global form and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange such
interests for Securities of such series and
20
<PAGE>
of like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and, if Securities of the series are to be
-----------
issuable as a global Security, the identity of the depositary for such
series;
(q) the date as of which any temporary global Security
representing Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of the series to
be issued;
(r) the Person to whom any interest on any Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest and the extent to which, or
the manner in which, any interest payable on a temporary global Security on
an Interest Payment Date will be paid if other than in the manner provided
in Section 304;
-----------
(s) the applicability, if any, of Sections 1402 and/or 1403 to
------------- ----
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
----------------
(t) if Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(u) the obligation, if any, of MCC to permit the conversion of
Securities of such series into MCC's Common Shares or Preferred Shares, as
the case may be, and the terms and conditions upon which such conversion
shall be effected (including, without limitation, the initial conversion
price or rate, the conversion period, any adjustment of the applicable
conversion price and any requirements relative to the reservation of such
shares for purposes of conversion); and
(v) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the TIA or the
provisions of this Indenture).
All Securities of any one series be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution (subject to Section 303) and set forth in such Officers'
-----------
Certificate or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of Securities of any series are established by action
taken pursuant to one or more Board Resolutions, a copy of an appropriate record
of such action(s) shall be
21
<PAGE>
certified by the Secretary or an Assistant Secretary of MCC and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of Securities of such series.
Section 302. Denominations. Securities of each series shall be
-------------
issuable in such denominations as shall be specified as contemplated by Section
-------
301. With respect to Securities of any series denominated in Dollars, in the
- ---
absence of any such provisions with respect to Securities of any series, other
than Securities issued in global form (which may be of any denomination), shall
be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating. All
----------------------------------------------
Securities shall be executed on behalf of MCC by an executive officer of MCC and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these individuals on Securities may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of MCC shall bind MCC, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, MCC may deliver Securities of any series, executed by MCC to the
Trustee for authentication, together with a MCC Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such MCC Order
shall authenticate and deliver such Securities. If not all Securities of any
series are to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series shall so permit, such MCC Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as interest
rate or formula, maturity date, date of issuance and date from which interest
shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through
--------------
315(d)) shall be fully protected in relying upon,
- ------
(a) an Opinion of Counsel stating that
(i) the form or forms of such Securities have been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(iii) such Securities, when completed by appropriate
insertions and executed and delivered by MCC to the Trustee for
authentication in accordance
22
<PAGE>
with this Indenture, authenticated and delivered by the Trustee
in accordance with this Indenture and issued by MCC in the manner
and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of
MCC, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights generally and to applicable equitable
principles, whether such principles are applied by a court of
equity or a court of law;
(iv) all laws and requirements in respect of the execution
and delivery by MCC of such Securities and of the supplemental
indentures, if any, have been complied with and that
authentication and delivery of such Securities and the execution
and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(v) MCC has the corporate power to issue such Securities
and has duly taken all necessary corporate action with respect to
such issuance; and
(vi) the issuance of such Securities will not contravene the
articles of incorporation or by-laws of MCC, or result in any
violation of any of the terms or provisions of any applicable law
or regulation;
(b) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with and that, to the best of the knowledge
of the signers of such certificate, no Event of Default with respect to any
Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding two
-----------
paragraphs, if not all Securities of any series are to be issued at one time, it
shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a MCC Order, an Opinion of Counsel and an Officers'
-----------
Certificate otherwise required pursuant to the preceding two paragraphs at the
time of issuance of each Security of such series, but such order, opinion and
certificate, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially
23
<PAGE>
in the form provided for herein duly executed by the Trustee by manual signature
of an authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by MCC, and MCC
shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with
- -----------
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
- -----------
such Security has never been issued and sold by MCC, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities. (a) Pending the preparation of
--------------------
definitive Securities of any series, MCC may execute, and upon a MCC Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Section 304(b) or as otherwise
--------------
provided in or pursuant to a Board Resolution), if temporary Securities of
any series are issued, MCC will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of MCC in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, MCC shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities
--------------
issued in global form other than through the facilities of DTC. If any such
temporary Security is issued in global form, then such temporary global
Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"),
24
<PAGE>
MCC shall deliver to the Trustee definitive Securities, in aggregate principal
amount equal to the principal amount of such temporary global Security, executed
by MCC. On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as MCC's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Security
to be exchanged. The definitive Securities to be delivered in exchange for any
such temporary global Security shall be in registered form, permanent global
form, or both, as specified as contemplated by Section 301, and, if any
-----------
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated no earlier than the
Exchange Date or the relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable, and signed by Euroclear as to the portion of such
temporary global Security held for its account then to be exchanged and a
certificate dated no earlier than the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable, and signed by
CEDEL as to the portion of such temporary global Security held for its account
then to be exchanged, each in the form set forth in Exhibit A-2 to this
-----------
Indenture or in such other form as may be established pursuant to Section 301.
-----------
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
-----------
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date. The interests of the Persons who are the beneficial owners of the
temporary global Security will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date, without further act or deed
by such beneficial owners. Except as otherwise provided in this paragraph, no
payments of principal or interest owing with respect to a beneficial interest in
a temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive
25
<PAGE>
Security. Any interest so received by Euroclear and CEDEL and not paid as
herein provided shall be returned to the Trustee not later than one month prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to MCC in accordance with Section 1003.
------------
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
MCC shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency of MCC in a Place of Payment a register for each series of
Securities (the registers maintained in such office or in any such office or
agency of MCC in a Place of Payment being herein sometimes referred to
collectively as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, MCC shall provide for the registration of
Securities and of transfers of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office, is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities on such Security Register as herein provided. In the
event that the Trustee shall cease to be Security Registrar, it shall have the
right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
-----------
registration of transfer of any Security of any series at any office or agency
of MCC in a Place of Payment for that series, MCC shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
-----------
Holder, Securities of any series may be exchanged for other Securities of the
same series, of any authorized denomination or denominations and of a like
aggregate principal amount, containing identical terms and provisions, upon
surrender of Securities to be exchanged at any such office or agency. Whenever
any such Securities are so surrendered for exchange, MCC shall execute, and the
Trustee shall authenticate and deliver, Securities that the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
-----------
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by MCC or to a nominee of such
successor to DTC. If at any time DTC notifies MCC that it is unwilling or unable
to continue as depositary for the applicable global Security or Securities or if
at any time DTC ceases to be a clearing agency registered under the Exchange Act
if so required by applicable law or regulation, MCC shall appoint a successor
depositary with respect to such global Security or Securities. If (a) a
successor depositary for such global Security or Securities is not appointed by
MCC within 90 days after MCC receives such notice or becomes aware of such
unwillingness, inability or ineligibility, (b) an Event of Default has occurred
and is continuing and the beneficial owners representing a
26
<PAGE>
majority in principal amount of the applicable series of Securities represented
by such global Security or Securities advise DTC to cease acting as depositary
for such global Security or Securities, or (c) MCC, in its sole discretion,
determines at any time that all Outstanding Securities (but not less than all)
of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then MCC
shall execute, and the Trustee shall authenticate and deliver definitive
Securities of like series, tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such global Security or
Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
-----------
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, MCC shall execute, and
the Trustee shall authenticate and deliver definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered for exchange by DTC or such other depositary as shall be
specified in the MCC Order with respect thereto to the Trustee, as MCC's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such permanent global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption. If a Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (x) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(y) any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, then
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is payable
in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of MCC, evidencing the same debt, and
entitled to the same benefits under this Indenture, as Securities surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange or redemption shall (if so required by MCC or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to MCC and the Security Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writing.
27
<PAGE>
No service charge shall be made for any registration of transfer or
exchange of Securities, but MCC may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
----------- --- ---- ----
MCC or the Trustee, as applicable, shall not be required (a) to issue,
register the transfer of or exchange any Security if such Security may be among
those selected for redemption during a period beginning at the opening of
business 15 days before selection of Securities to be redeemed under Section
-------
1103 and ending at the close of business on the day of the mailing of the
- ----
relevant notice of redemption, (b) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed, or
(c) to issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If
------------------------------------------------
any mutilated Security is surrendered to the Trustee or MCC, together with, in
proper cases, such security or indemnity as may be required by MCC or the
Trustee to save each of them or any agent of either of them harmless, MCC shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding.
If there shall be delivered to MCC and to the Trustee (a) evidence to
their satisfaction of the destruction, loss or theft of any Security, and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to MCC or
the Trustee that such Security has been acquired by a bona fide purchaser, MCC
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security, a new Security of the
same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, MCC in its discretion may, instead of issuing a new
Security.
Upon the issuance of any new Security under this Section 306, MCC may
-----------
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 306
-----------
in lieu of any mutilated, destroyed, lost or stolen Security, shall constitute
an original additional contractual obligation of MCC, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly issued
hereunder.
28
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The provisions of this Section 306 are exclusive and shall preclude
-----------
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Security that is
-----------
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of MCC maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
------------
interest on any Security may at MCC's option be paid by (a) mailing a check for
such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 308, to the address of such Person as it appears on
-----------
the Security Register, or (b) transfer to an account maintained by the payee
located inside the United States.
Unless otherwise provided as contemplated by Section 301, every
-----------
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
Any Interest on any Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
"Defaulted Interest") shall be paid by MCC, at its election in each case, as
provided in clause (a) or (b) below:
(a) MCC may elect to make payment of any Defaulted Interest to
the Persons in whose names Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. MCC shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of
the proposed payment (which shall not be less than 20 days after such
notice is received by the Trustee), and at the same time MCC shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for Securities of such series) equal
-----------
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for
29
<PAGE>
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify MCC of such Special Record Date and, in the name and
at the expense of MCC, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided in Section 106 not less than 10 days
-----------
prior to such Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of MCC, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (b).
(b) MCC may make payment of any Defaulted Interest on Securities
of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by MCC to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 307 and Section
----------- -------
305, 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, that were carried by such other
Security.
Section 308. Persons Deemed Owners. Prior to due presentment of a
---------------------
Security for registration of transfer, MCC, the Trustee and any agent of MCC or
the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any), and (subject to Sections 305 and 307) interest on, such
------------ ---
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither MCC, the Trustee nor any agent of MCC or the Trustee shall
be affected by notice to the contrary.
None of MCC, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Security
in global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent MCC, the Trustee, or any agent of MCC or the
Trustee, from giving effect to any written
30
<PAGE>
certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
Section 309. Cancellation. All Securities surrendered for payment,
------------
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and any such
Securities surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it; provided, however, where the Place of Payment is
located outside of the United States, the Paying Agent at such Place of Payment
may cancel Securities surrendered to it for such purposes prior to delivering
such Securities to the Trustee. MCC may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
that MCC may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder that MCC has not issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee.
If MCC shall so acquire any Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section 309, except as expressly
-----------
permitted by this Indenture. Canceled Securities held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to MCC, unless MCC directs their return to it by an MCC Order.
Section 310. Computation of Interest. Except as otherwise
-----------------------
specified as contemplated by Section 301 with respect to Securities of any
-----------
series, interest on Securities of each series shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. This
---------------------------------------
Indenture shall upon MCC Request cease to be of further effect with respect to
any series of Securities specified in such MCC Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series expressly provided for herein or pursuant hereto, the rights of Holders
of Outstanding Securities to receive, solely from the trust fund described in
subclause (ii) of clause (a) of this Section 401, payments in respect of the
-----------
principal of (and premium, if any) and interest on such Securities when such
payments are due, and any right to receive Additional Amounts, as provided in
Section 1009), and the Trustee, upon receipt of a MCC Order, and at the expense
- ------------
of MCC, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
31
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(a) either
(i) all Securities of such series theretofore authenticated
and delivered (other than (A) Securities that have been destroyed,
lost or stolen and that have been replaced or paid as provided in
Section 306, and (B) Securities of such series for whose payment money
-----------
has theretofore been deposited in trust or segregated and held in
trust by MCC and thereafter repaid to MCC or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee
------------
for cancellation; or
(ii) all Securities of such series not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their Stated Maturity
within one year, or
(C) if redeemable at the option of MCC, are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of MCC,
and MCC, in the case of (A), (B) or (C) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies,
currency unit or units or composite currency or currencies in which
Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any)
and interest with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b) MCC has paid or caused to be paid all other sums payable hereunder
by MCC; and
(c) MCC has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of MCC to the Trustee and any predecessor Trustee under Section 606,
-----------
the obligations of MCC to any Authenticating Agent under Section 611 and, if
-----------
money shall have been deposited with and held by the Trustee pursuant to
subclause (ii) of clause (a) of this Section 401, the obligations of the Trustee
-----------
under Section 402 and the last paragraph of Section 1003 shall survive.
----------- ------------
32
<PAGE>
Section 402. Application of Trust Funds. Subject to the provisions
--------------------------
of the last paragraph of Section 1003, all money deposited with the Trustee
------------
pursuant to Section 401 shall be held in trust and applied by it, in accordance
-----------
with the provisions of the Securities and this Indenture, to the payment either
directly or through any Paying Agent (including MCC acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and any interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default. "Event of Default," wherever used
-----------------
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security
of that series when such interest becomes due and payable, and
continuance of such default for a period of 30 days;
(b) default in the payment of the principal of (or premium,
if any) any Security of that series when due;
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series and Article
-------
Twelve;
------
(d) default in the performance, or breach, of any covenant
or warranty of MCC in this Indenture with respect to any Security of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section 501
-----------
specifically dealt with), and continuance of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to MCC by the Trustee or to MCC and the Trustee by the
Holders of at least 25% in principal amount of Outstanding Securities
of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder;
(e) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by MCC (including obligations under
leases required to be capitalized on the balance sheet of the lessee
under GAAP, but not including any indebtedness or obligations for
which recourse is limited to property purchased) in an
33
<PAGE>
aggregate principal amount in excess of $25,000,000 or under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness for money borrowed by MCC
(including such leases but not including such indebtedness or obligations
for which recourse is limited to property purchased) in an aggregate
principal amount in excess of $25,000,000 by MCC, whether such indebtedness
now exists or shall hereafter be created, which default shall have resulted
in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable or such
obligations being accelerated, without such acceleration having been
rescinded or annulled;
(f) MCC or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it in
an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian of it or for all
or a majority of its property,
(iv) makes a general assignment for the benefit of its creditors
or files a proposed or other scheme of arrangement involving the
rescheduling or composition of its indebtedness,
(v) files a petition in bankruptcy or an answer or consent
seeking reorganization or relief, or
(vi) consents to the filing of such petition in bankruptcy;
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against MCC or any Significant
Subsidiary in an involuntary case,
(ii) appoints a Custodian of MCC or any Significant
Subsidiary or for all or a majority of either of its property, or
(iii) orders the liquidation, winding up, dissolution
or reorganization of MCC or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90
days;
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<PAGE>
(h) a Custodian is appointed out of court with respect to MCC, or with
respect to all or a majority of the property of MCC, or any encumbrance
shall take possession of all or a majority of the property of MCC; or
(i) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
-----------
or any similar United States Federal or State law or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or for the relief of debtors, and the term "Custodian" means any
receiver, trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of Outstanding Securities
of that series may declare the principal (or, if any Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
as may be specified in the terms thereof) of all Securities of that series to be
due and payable immediately, by a notice in writing to MCC (and to the Trustee
if given by the Holders), and upon any such declaration such principal or
specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article Five provided, the Holders of a majority in principal amount of
- ------------
Outstanding Securities of that series, by written notice to MCC and the Trustee,
may rescind and annul such declaration and its consequences if:
(a) MCC has paid or deposited with the Trustee a sum sufficient to pay
in the currency or currency unit or composite currency in which Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for Securities of such series):
-----------
(i) all overdue installments of interest on all Outstanding
Securities of that series,
(ii) the principal of (and premium, if any) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
35
<PAGE>
(iii) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
(b) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
-----------
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. MCC covenants that if:
- -------
(a) default is made in the payment of any installment of interest
on any Security of any series when such interest becomes due and payable
and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any) any Security of any series at its Maturity, then MCC will,
upon demand of the Trustee, pay to the Trustee, for the benefit of the
Holders of such Securities of such series, the whole amount then due and
payable on such Securities for principal (and premium, if any) and
interest, with interest upon any overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If MCC fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
MCC or any other obligor upon such Securities of such series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of MCC or any other obligor upon such Securities of such series,
wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement
36
<PAGE>
of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim. In case of the
--------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to MCC or any other obligor upon Securities or the property
of MCC or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of Securities of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on MCC for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in Securities of such series, of
principal (and premium, if any) and interest owing and unpaid in
respect of Securities and to file such 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 of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
-----------
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and may be a member of
the creditors' committee or similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or any
- ----------
Securities may be prosecuted and enforced by the Trustee without the possession
of any Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee,
37
<PAGE>
its agents and counsel, be for the ratable benefit of the Holders of Securities
in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money collected
------------------------------
by the Trustee pursuant to this Article Five shall be applied in the following
------------
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest upon presentation of Securities, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
-----------
SECOND: To the payment of the amounts then due and unpaid upon
Securities for principal (and premium, if any) and interest payable,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities
for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to MCC.
Section 507. Limitation on Suits. No Holder of any Security of any
-------------------
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
that series;
(b) the Holders of not less than 25% in principal amount of
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or
38
<PAGE>
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium, if any, and Interest. Notwithstanding any other provision in this
- -----------------------------
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and, subject to Sections 305 and 307, interest on such Security on the
------------ ---
respective due dates expressed in such Security (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder of a Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, MCC, the Trustee and the Holders of
Securities shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right or
-----------
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or to
------------
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities.
Section 512. Control by Holders of Securities. The Holders of not
--------------------------------
less than a majority in principal amount of Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to Securities of such series,
provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture,
39
<PAGE>
(b) the Trustee may take any other action deemed proper by
the Trustee, which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein, it being understood
that (subject to Section 602) the Trustee shall have no duty or
-----------
obligation to determine whether or not such action or forbearance
would be prejudicial to such Holders.
Section 513. Waiver of Past Defaults. The Holders of not less than
-----------------------
a majority in principal amount of Outstanding Securities of any series may on
behalf of the Holders of all Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of (or premium, if any)
or interest on payable in respect of any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
------------
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 514. Waiver of Usury, Stay or Extension Laws. MCC
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim, or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and MCC (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, 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, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 515 shall not apply to
-----------
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
Outstanding Securities, or to any
40
<PAGE>
suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults. Within 90 days after the
------------------
occurrence of any default hereunder with respect to Securities of any series,
the Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of Securities of such series; and provided further
that in the case of any default or breach of the character specified in Section
-------
501(d) with respect to Securities of such series, no such notice to Holders
- ------
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section 601, the term "default" means any event which is, or
-----------
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of MCC mentioned herein shall be
sufficiently evidenced by a MCC Request or MCC Order (other than
delivery of any Security to the Trustee for authentication and
delivery pursuant to Section 303, which shall be sufficiently
-----------
evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
41
<PAGE>
(d) before the Trustee acts or refrains from acting, it may
consult with counsel and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant to
this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to make
reasonable examination of the books, records and premises of MCC,
personally or by agent or attorney following reasonable notice to MCC;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
(i) the Trustee shall not be required to give any bond or surety
in respect of the performance of its powers or duties hereunder;
(j) except for (i) a default under Section 501(a) or (b) or (ii)
any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not
be deemed to have notice of any default or Event of Default unless
specifically notified in writing of such event by MCC or the Holders of not
less than 25% in aggregate principal amount of any series of the Securities
outstanding; as used herein, the term "actual knowledge" means the actual
fact or statement of knowing without any duty to make any investigation
with regard thereto.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its
42
<PAGE>
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
Section 603. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of MCC, and
neither the Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to MCC
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by MCC of Securities or the proceeds thereof.
Section 604. May Hold Securities. The Trustee, any Paying Agent, Security
-------------------
Registrar, Authenticating Agent or any other agent of MCC, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to TIA Sections 310(b) and 311, may otherwise deal with MCC with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
Section 605. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with MCC.
Section 606. Compensation and Reimbursement. MCC agrees:
------------------------------
(a) to pay to the Trustee from time to time compensation agreed
to with the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee for collection or otherwise in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(c) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or
43
<PAGE>
willful misconduct on its own part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Sections 501(f) or 501(g), the expenses (including
--------------- ------
the reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of MCC under this
Section 606, the Trustee shall have a lien prior to the Securities upon all
- -----------
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on any
particular Securities.
The provisions of this Section 606 shall survive the termination of this
-----------
Indenture.
Section 607. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests. There shall at all times be a Trustee hereunder which shall be
- ---------
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000, which in the case of the Trustee
named in the first paragraph of this Indenture shall mean that (a) the combined
capital and surplus of such Trustee plus (b) the combined capital and surplus of
any Corporation of which such Trustee is a Wholly Owned Subsidiary shall be at
least $50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six. If the Trustee has or shall acquire a conflicting interest within
- -----------
the meaning of TIA Section 310(b), the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the TIA and this Indenture.
Section 608. Resignation and Removal; Appointment of Successor. (a) No
-------------------------------------------------
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article Six shall become effective until the acceptance of
-----------
appointment of a successor Trustee in accordance with the applicable
requirements of Section 609.
-----------
(b) The Trustee may resign at any time with respect to Securities
of one or more series by giving written notice thereof to MCC. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
44
<PAGE>
(c) The Trustee may be removed at any time with respect to
Securities of any series by Act of the Holders of a majority in principal
amount of Outstanding Securities of such series delivered to the Trustee
and to MCC.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by MCC or by any
--------------
Holder of a Security who has been a bona fide Holder of a Security
for at least six months,
(ii) the Trustee shall cease to be eligible under Section
-------
607 and shall fail to resign after written request therefor by MCC
---
or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to Securities of one or more series, MCC, by or pursuant to a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to Securities
of one or more or all of such series and that at any time there shall be
only one Trustee with respect to Securities of any particular series). If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of Outstanding Securities of such series delivered to MCC
and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to Securities of such series and to that extent
supersede the successor Trustee appointed by MCC. If no successor Trustee
with respect to Securities of any series shall have been so appointed by
MCC or the Holders of Securities and accepted appointment in the manner
hereinafter provided, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series. Any resigning or removed Trustee
shall be entitled to all benefits, indemnities, exculpations and
protections available to it as Trustee as to any actions taken or omitted
to be taken by it while it was Trustee under this Indenture.
then, in any such case, (i) MCC by or pursuant to a Board Resolution may remove
the Trustee and appoint a successor Trustee with respect to all Securities, or
(ii) subject to TIA
45
<PAGE>
Section 315(e), any Holder of a Security who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(f) MCC shall give notice of each resignation and each removal of
the Trustee with respect to Securities of any series and each appointment
of a successor Trustee with respect to Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106.
-----------
Each notice shall include the name of the successor Trustee with respect to
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor. (a) In case of the
--------------------------------------
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to MCC and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of MCC or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
-----------
(b) In case of the appointment hereunder of a successor Trustee
with respect to Securities of one or more (but not all) series, MCC, the
retiring Trustee and each successor Trustee with respect to Securities of
one or more series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine, wherein each successor Trustee shall
------------
accept such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to Securities of that or those series to
which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to
Securities of that or those
46
<PAGE>
series to which the appointment of such successor Trustee relates; but, on
request of MCC or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to Securities of
that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, MCC shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section 609, as the case may
-----------
be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article Six.
-----------
Section 610. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article Six,
-----------
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such Securities. In case any
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Securities, in either
its own name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.
Section 611. Appointment of Authenticating Agent. At any time when any
-----------------------------------
Securities remain Outstanding, the Trustee may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to MCC and the
Trustee shall give written notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve in the manner provided for in Section 106. Wherever reference is made in
-----------
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to MCC and shall at all
47
<PAGE>
times be a bank or trust company or corporation organized and doing business and
in good standing under the laws of the United States of America or of any State
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, subject to supervision or examination by Federal or State authorities and
having a combined capital and surplus of at least $50,000,000. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 611, the combined capital and surplus of
-----------
such Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In case at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 611, such Authenticating Agent shall resign
-----------
immediately in the manner and with the effect specified in this Section 611.
-----------
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 611, without the execution or filing of any paper or further
-----------
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
MCC. The Trustee for any series of Securities may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to MCC. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 611, the Trustee for such series may appoint a
-----------
successor Authenticating Agent which shall be acceptable to MCC and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
- -----------
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 611.
-----------
MCC agrees to pay to each Authenticating Agent from time to time reasonable
compensation including reimbursement of its reasonable expenses for its services
under this Section 611.
-----------
If an appointment with respect to one or more series is made pursuant to
this Section 611, Securities of such series may have endorsed thereon, in
-----------
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
48
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--------------------
as Trustee
By:
-----------------,
as Authenticating Agent
By:
------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND MCC
Section 701. Disclosure of Names and Addresses of Holders. Every Holder of
--------------------------------------------
Securities, by receiving and holding the same, agrees with MCC and the Trustee
that neither MCC nor the Trustee nor any Authenticating Agent nor any Paying
Agent nor any Security Registrar shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders of
Securities in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
Section 702. Reports by Trustee. Within 60 days after June 1 of each year
------------------
commencing with the first June 1 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such
June 1 if required by TIA Section 313(a).
Section 703. Reports by MCC. MCC will:
--------------
(a) file with the Trustee, within 15 days after MCC is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) that MCC may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if MCC is
not required to file information, documents or reports pursuant to either
of such Sections, then it will file with the Trustee, in accordance with
rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information,
49
<PAGE>
documents and reports with respect to compliance by MCC with the conditions
and covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(c) transmit or cause to be transmitted by mail to the Holders of
Securities, within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in TIA Section 313(c), such summaries
of any information, documents and reports required to be filed by MCC
pursuant to paragraphs (a) and (b) of this Section 703 as may be required
-----------
by rules and regulations prescribed from time to time by the Commission;
Section 704. MCC to Furnish Trustee Names and Addresses of Holders. MCC
-----------------------------------------------------
will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders of Securities of such series as of such Regular Record Date, or
if there is no Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by MCC of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished, provided, however, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 801. Consolidations and Mergers of MCC and Sales, Leases and
-------------------------------------------------------
Conveyances Permitted Subject to Certain Conditions. MCC may consolidate with
- ---------------------------------------------------
or sell, lease or convey all or substantially all of its assets to, or merge
with or into any other corporation, provided that in any such case, (a) either
MCC shall be the continuing Corporation, or the successor Corporation (a
"successor entity") (if other than MCC) shall expressly assume the due and
punctual payment of the principal of (and premium, if any) and any Interest on
all Securities, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed by MCC by supplemental indenture, complying with Article Nine,
------------
satisfactory to the Trustee, executed and delivered to the Trustee by such
successor entity, and (b) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of MCC or the
successor entity as a result thereof as having been incurred by MCC or such
successor entity at the time of such transaction, no Event
50
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of Default, and no event which, after notice or the lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing.
Section 802. Rights and Duties of Successor Entity. In case of any such
-------------------------------------
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for MCC, with the same effect as if it had been named herein, and the
predecessor entity, except in the event of a lease, shall be relieved of any
further obligation under this Indenture and the Securities. Such successor
entity thereupon may cause to be signed, and may issue either in its own name or
in the name of MCC, any or all Securities issuable hereunder that theretofore
shall not have been signed by MCC and delivered to the Trustee; and, upon the
order of such successor entity, instead of MCC, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of MCC to the Trustee for authentication,
and any Securities that such successor entity thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in Securities
thereafter to be issued as may be appropriate.
Section 803. Securities to Be Secured in Certain Events. If, upon any
------------------------------------------
consolidation or amalgamation of MCC with or merger of MCC into any other
Person, or upon any conveyance, lease or transfer of the properties and assets
of MCC substantially as an entirety to any other Person, any of the property and
assets of MCC would thereupon become subject to any Lien, then unless such Lien
could be created pursuant to Section 1010 without equally and ratably securing
------------
the Securities, MCC, prior to or simultaneously with such consolidation, merger,
conveyance, lease or transfer, will secure Securities Outstanding hereunder
(together with, if MCC shall so determine, any other indebtedness of MCC now
existing or hereafter created that is not subordinate to such Securities)
equally and ratably with (or prior to) the indebtedness that upon such
consolidation, merger, conveyance, lease or transfer is to become secured by
such Lien, or will cause such Securities to be so secured; provided that, for
the purpose of providing such equal and ratable security, the principal amount
of Original Issue Discount Securities and Indexed Securities shall mean that
amount which would at the time of making such effective provision be due and
payable pursuant to Section 502 and the terms of such Original Issue Discount
-----------
Securities and Indexed Securities upon a declaration of acceleration of the
Maturity thereof, and the extent of such equal and ratable security shall be
adjusted, to the extent permitted by law, as and when said amount changes over
time pursuant to the terms of such Original Issue Discount Securities and
Indexed Securities.
Section 804. Officers' Certificate and Opinion of Counsel. Any
--------------------------------------------
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
-----------
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such
51
<PAGE>
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article Eight and that
-------------
all conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities, MCC, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to MCC and the
assumption by any such successor of the covenants of MCC contained herein
and in the Securities;
(b) to add to the covenants of MCC for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon MCC;
(c) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely for
the benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default;
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture that is entitled to
the benefit of such provision ;
(e) to secure Securities pursuant to the requirements of Section
-------
803 or 1010 or otherwise;
--- ----
52
<PAGE>
(f) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301, including the provisions and procedures
------------ ---
relating to Securities convertible into Common Shares or Preferred Shares,
as the case may be;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to Securities of one or more
series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee;
(h) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such provisions shall not
adversely affect the interests of the Holders of Securities of any series
in any material respect; or
(i) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
------------ ----
1403; provided that any such action shall not adversely affect the
----
interests of the Holders of Securities of such series or any other series
of Securities in any material respect.
Section 902. Supplemental Indentures with Consent of Holders. With the
-----------------------------------------------
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to MCC and the Trustee, MCC, when authorized by or pursuant to
a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of (or premium,
if any) or any installment of principal of or interest on, any Security; or
reduce the principal amount thereof or the rate or amount of interest
thereon, or any premium payable upon the redemption thereof, reduce the
amount of the principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
-----------
bankruptcy pursuant to Section 504, or adversely affect any right of
-----------
repayment at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, any Security or any premium or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or the
53
<PAGE>
Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section
-------
301,
---
(b) reduce the percentage in principal amount of Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
------------
(c) modify any of the provisions of this Section 902, Section 513
----------- -----------
or Section 1008, except to increase the required percentage to effect such
------------
action or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this Section 902
-----------
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Section 903. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article Nine or the modification thereby of the trusts created by this
------------
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 904. Effect of Supplemental Indentures. Upon the execution of any
---------------------------------
supplemental indenture under this Article Nine, this Indenture shall be modified
------------
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with TIA. Every supplemental indenture executed
-------------------
pursuant to this Article Nine shall conform to the requirements of the TIA as
------------
then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall, if required
------------
by the Trustee, bear a notation in form approved by
54
<PAGE>
the Trustee as to any matter provided for in such supplemental indenture. If MCC
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and MCC, to any such supplemental indenture may be
prepared and executed by MCC and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 907. Notice of Supplemental Indentures. Promptly after the
---------------------------------
execution by MCC and the Trustee of any supplemental indenture pursuant to the
provisions of Section 902, MCC shall give notice thereof to the Holders of each
-----------
Outstanding Security affected, in the manner provided for in Section 106,
-----------
setting forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest. MCC
---------------------------------------------------
covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of (and premium, if any) and
interest on Securities of that series in accordance with the terms of such
series of Securities and this Indenture. Unless otherwise specified with respect
to Securities of any series pursuant to Section 301, at the option of MCC, all
payments of principal may be paid by check to the registered Holder of the
Security or other person entitled thereto against surrender of such
Security.
Section 1002. Maintenance of Office or Agency. MCC shall maintain in each
-------------------------------
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon MCC in respect
of Securities of that series and this Indenture may be served. MCC will give
prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time MCC 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 Corporate Trust Office of the Trustee and MCC
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
MCC may from time to time designate one or more other offices or agencies
where Securities of one or more series may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve MCC of its obligation to maintain an office or agency in accordance with
the requirements set forth above for Securities of any series for such purposes.
MCC will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to Section
-------
301 with respect to a series of Securities, MCC hereby designates as a Place of
- ---
Payment for each series of Securities the office or agency of MCC in the Borough
of Manhattan, New York City, and initially appoints the Trustee at its, or its
agent's, Corporate Trust Office as Paying Agent and as its agent to receive all
such presentations, surrenders, notices and demands.
55
<PAGE>
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as Securities of any series (a) are denominated in a
- -----------
Foreign Currency or (b) may be payable in a Foreign Currency, or so long as it
is required under any other provision of the Indenture, then MCC will maintain
with respect to each such series of Securities, or as so required, at least one
exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust. If MCC
-------------------------------------------------
shall at any time act as its own Paying Agent with respect to any series of any
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum in the
currency or currencies, currency unit or units or composite currency or
currencies in which Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for Securities of such series) sufficient to
-----------
pay the principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
Whenever MCC shall have one or more Paying Agents for any series of
Securities, it will, before each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum (in the currency or currencies, currency unit or units or composite currency
or currencies described in the preceding paragraph) sufficient to pay the
principal (and premium, if any) or interest, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest and (unless such Paying Agent is the Trustee) MCC will promptly
notify the Trustee of its action or failure so to act.
MCC will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section 1003, that such Paying
------------
Agent will
(a) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by MCC (or any other
obligor upon Securities) in the making of any such payment of principal
(and premium, if any) or interest; and
(c) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
MCC may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by MCC Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by MCC or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by MCC or such Paying Agent;
56
<PAGE>
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such sums.
Except as otherwise provided in Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by MCC, in trust
for the payment of the principal of (and premium, if any) or interest on any
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to MCC upon MCC Request or (if then held by MCC) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to MCC for payment of such principal of (and
premium, if any) or interest on any Security, without interest thereon, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of MCC as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of MCC cause to be published once, in an
Authorized Newspaper, 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, any unclaimed balance of such money then remaining will be
repaid to MCC.
Section 1004. Existence. Subject to Article Eight, MCC will do or cause to
--------- -------------
be done all things necessary to preserve and keep in full force and effect its
existence as a corporation, rights (charter and statutory) and franchises;
provided, however, that MCC shall not be required to preserve any right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of MCC.
Section 1005. Statement as to Compliance. MCC will deliver to the
--------------------------
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer, as to his or her knowledge, of MCC's compliance with all
conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 1005, such compliance shall be determined without
------------
regard to any period of grace or requirement of notice under this Indenture.
Section 1006. Limitation on Liens.
-------------------
(a) MCC shall not, and shall not permit any Subsidiary of MCC to,
incur any Lien on or with respect to any Principal Property of MCC or any
such Subsidiary now owned or hereafter acquired to secure Debt without
making, or causing such Subsidiary to make, effective provision for
securing the Securities (i) equally and ratably with such Debt as to such
Principal Property for so long as such Debt shall be so secured, or (ii) in
the event such Debt is subordinate in right of payment to the Securities,
prior to such Debt as to such Principal Property for so long as such Debt
shall be so secured.
The foregoing restrictions will not apply to Liens in respect of Debt
existing at the date of this Indenture, Liens on or with respect to property
that is not Principal Property or to:
57
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(i) Liens securing only Securities;
(ii) Liens in favor of MCC or any of its
Subsidiaries;
(iii) Liens on property existing immediately prior to the time
of acquisition thereof (and not created in anticipation of the
financing of such acquisition);
(iv) Liens to secure Debt incurred for the purpose of
financing all or any part of the purchase price or the cost of
construction or improvement of property used in the business of MCC
or any of its Subsidiaries and subject to such Liens, provided that
(A) the principal amount of any Debt secured by such a Lien does
not exceed 100% of such purchase price or cost, (B) such Lien does
not extend to or cover any other property other than such property
and any such improvements and (C) such Debt is incurred within 360
days of such purchase, construction or improvement;
(v) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with MCC or any of
its Subsidiaries that were not created in anticipation of the
acquisition of such Person, provided that such Lien does not extend
to or cover any property other than that of the Person so merged or
consolidated;
(vi) Liens on any Principal Property in favor of domestic or
foreign governmental bodies to secure partial progress, advance or
other payments pursuant to any contract or statute of such
governmental body; and
(vii) Liens to secure Debt incurred to extend, renew,
refinance, replace or refund (or successive extensions, renewals,
refinancings, replacements or refundings), in whole or in part, any
secured Debt existing on the date of this Indenture or any Debt
secured by any Lien referred to in the foregoing clauses (i) to
(vi), so long as in each such case the Lien does not extend to any
other property and the Debt so secured is not increased other than
for reasonable costs related to such extension, renewal,
refinancing, replacement or refunding.
(b) Notwithstanding the foregoing Paragraph (a), MCC and its
Subsidiaries may incur a Lien or Liens to secure Debt (excluding Debt
secured by Liens permitted under the foregoing exceptions) the aggregate
amount of which, including Attributable Debt in respect of Sale and
Leaseback Transactions, does not exceed 15% of Consolidated Net Tangible
Assets.
(c) Notwithstanding the foregoing Paragraphs (a) and (b), MCC and
its Subsidiaries may incur a Lien or Liens to secure any Debt incurred
pursuant to a Sale and Leaseback Transaction, without securing the
Securities equally and ratably with or prior
58
<PAGE>
to such Debt, as applicable, provided that such Sale and Leaseback
Transaction complies with the terms of Paragraphs (b) and (c) of Section
-------
1007.
----
Section 1007. Limitation on Sale and Leaseback Transactions. MCC
---------------------------------------------
shall not, and shall not permit any Subsidiary of MCC to, enter into any Sale
and Leaseback Transaction with respect to any Principal Property (except for a
period, including renewals, not exceeding 36 months) unless:
(a) at the time of entering into such Sale and Leaseback
Transaction, MCC or such Subsidiary would be entitled to incur Debt,
in a principal amount equal to the Attributable Debt in respect of
such Sale and Leaseback Transaction, secured by a Lien, without
equally and ratably securing the Securities;
(b) MCC or such Subsidiary applies, within 12 months after the
sale or transfer, an amount equal to the greater of (i) the net
proceeds of the Principal Property sold pursuant to the Sale and
Leaseback Transaction, or (ii) the fair value (in the opinion of an
executive officer of MCC) of such Principal Property to the
acquisition of or construction on property used or to be used in the
ordinary course of business of MCC or a Subsidiary of MCC, and MCC
shall have elected to designate such amount as a credit against such
Sale and Leaseback Transaction; or
(c) MCC or such Subsidiary applies, within 12 months after the
sale or transfer, an amount equal to the net proceeds of Principal
Property sold pursuant to the Sale and Leaseback Transaction to the
voluntary defeasance or retirement of Debt, which amount shall not be
less than the fair value (in the opinion of an executive officer of
MCC) of such Principal Property less an amount equal to the principal
amount of such Debt voluntarily defeased or retired by MCC or such
Subsidiary within such 12-month period and not designated as a credit
against any other Sale and Leaseback Transaction.
Notwithstanding the foregoing, in no event shall MCC be required to
defease or retire, in the aggregate with respect to any and all such
transactions, more than 25% of the original aggregate principal amount of a
series of Securities on or prior to the fifth anniversary of the Issue Date
thereof. If the aggregate net proceeds that MCC would be otherwise required to
defease or retire Securities on or prior to the fifth anniversary of the Issue
Date would exceed 25% of the original aggregate principal amount of such series
(such excess being "25% Excess Proceeds"), then promptly after such fifth
anniversary MCC shall defease or retire Securities in an amount equal to the 25%
Excess Proceeds. Pending such defeasing or retiring of Securities, the 25%
Excess Proceeds shall be invested and maintained in Permitted Short-Term
Investments and MCC shall not distribute such proceeds in respect of its shares.
Section 1008. Waiver of Certain Covenants. MCC may omit in any
---------------------------
particular instance to comply with any term, provision or condition set forth in
Section 1004, Section 1006 or Section 1007 if before or after the time for such
- ------------ ------------ ------------
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
59
<PAGE>
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of MCC and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article
----------- -------
Eleven.
- ------
Section 1102. Election to Redeem; Notice to Trustee. The election of
-------------------------------------
MCC to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of MCC of less than all
Securities of any series, MCC shall, at least 45 days prior to the giving of the
notice of redemption required by Section 1104 (unless a shorter notice shall be
------------
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver or cause to be delivered to the Trustee such documentation and records
as shall enable the Trustee to select, at the direction of MCC, Securities to be
redeemed pursuant to Section 1103. In the case of any redemption of Securities
------------
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, MCC shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee at the direction of MCC, from Outstanding
Securities of such series not previously called for redemption, by lot or pro
rata as directed by MCC or by such method as the Trustee and MCC shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify MCC in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed, and the Trustee and MCC
shall jointly advise the Security Registrar (if other than the Trustee) of their
selection.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be
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<PAGE>
redeemed only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided in Section 106, not less than 30 days nor more than
-----------
60 days prior to the Redemption Date, unless a shorter period is specified by
the terms of such series established pursuant to Section 301, to each Holder of
-----------
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any,
------------
(c) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(d) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(e) that on the Redemption Date, the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106,
------------
if any, will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(f) the Place or Places of Payment where such Securities maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion,
(g) that the redemption is for a sinking fund, if such is the
case,
(h) the CUSIP number of such Security, if any, and
(i) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities,
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<PAGE>
the then existing conversion price or rate, and the date and time when
the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by
MCC or, at MCC's request, by the Trustee in the name and at the expense of MCC.
Section 1105. Deposit of Redemption Price. At least one Business
---------------------------
Day prior to any Redemption Date, MCC shall deposit with the Trustee or with a
Paying Agent (or, if MCC is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
--------------
in trust as provided in Section 1003) an amount of money in the currency or
------------
currencies, currency unit or units or composite currency or currencies in which
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for Securities of such series) sufficient to pay on the Redemption
- -----------
Date the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all Securities or portions thereof
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for Securities of such series)
-----------
(together with accrued interest, if any, to the Redemption Date), and from and
after such date (unless MCC shall default in the payment of the Redemption Price
and accrued interest) such Securities shall, if the same were interest-bearing,
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice maturing after the Redemption Date, such Security
shall be paid by MCC at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided that, except as otherwise provided with
respect to Securities convertible into Common Stock or Preferred Stock,
installments of interest on Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
-------
307.
- ---
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
Section 1107. Securities Redeemed in Part. Any Security, which is
---------------------------
to be redeemed only in part (pursuant to the provisions of this Article Eleven
--------------
or Article Twelve), shall be surrendered at a Place of Payment therefor (with,
--------------
if MCC or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to MCC and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and MCC shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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<PAGE>
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article. The provisions of this
------------------------
Article Twelve shall be applicable to any sinking fund for the retirement of
- --------------
Securities of a series except as otherwise specified as contemplated by Section
-------
301 for Securities of such series.
- ---
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment".
If provided for by the terms of any Securities of any series, the cash
amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
------------
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
MCC may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to Securities of a series, (a) deliver Outstanding
Securities of such series (other than any previously called for redemption) and
(b) apply as a credit Securities of such series which have been redeemed either
at the election of MCC pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by MCC; provided that such Securities so delivered or
applied as a credit have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for Securities of any
series, MCC shall deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for Securities of
-----------
such series) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202, and
------------
the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to be
so delivered and credited. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, MCC shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the
63
<PAGE>
Trustee shall select Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 1103 and cause notice of the redemption
------------
thereof to be given in the name of and at the expense of MCC in the manner
provided in Section 1104. Such notice having been duly given, the redemption of
------------
such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
- ------------- ----
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article. Repayment of Securities of
------------------------
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities, if any, (except as
otherwise specified by the terms of such series established pursuant to Section
-------
301) in accordance with this Article Thirteen.
- --- ----------------
Section 1302. Repayment of Securities. Securities of any series
-----------------------
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities.
MCC covenants that at least one Business Day prior to the Repayment
Date it will deposit with the Trustee or with a Paying Agent (or, if MCC is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
- ------------
units or composite currency or currencies in which Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for Securities of
-----------
such series) sufficient to pay the principal (or, if so provided by the terms of
Securities of any series, a percentage of the principal) of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest on, all
Securities or portions thereof, as the case may be, to be repaid on such date.
Section 1303. Exercise of Option. Securities of any series subject
------------------
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at
the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which MCC shall from time to time notify the
Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (a) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in
writing), or (b) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc., or a commercial bank or trust company in the United
States setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be repaid, the
CUSIP number, if any, or a description of the tenor and terms of the Security, a
64
<PAGE>
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of such Security is
to be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by MCC.
Section 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
- -------
the Holders thereof shall have been surrendered as provided in this Article
-------
Thirteen and as provided by or pursuant to the terms of such Securities, such
- --------
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by MCC on the Repayment Date therein
specified, and on and after such Repayment Date (unless MCC shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if the
same are interest-bearing, cease to bear interest. Upon surrender of any such
Security for repayment in accordance with such provisions, the principal amount
of such Security so to be repaid shall be paid by MCC, together with accrued
interest, if any, to the Repayment Date; provided that installments of interest,
if any, whose Stated Maturity is on or prior to the Repayment Date shall be
payable (but without interest thereon, unless MCC shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
-----------
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Security that is to be repaid in part only, MCC shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of MCC, a new Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
65
<PAGE>
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; MCC's Option to Effect
------------------------------------------------
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
- --------------------------------- -----------
made for either or both of (a) defeasance of Securities of or within a series
under Section 1402, or (b) covenant defeasance of Securities of or within a
------------
series under Section 1403, then the provisions of such Section or Sections, as
------------
the case may be, together with the other provisions of this Article Fourteen
----------------
(with such modifications thereto as may be specified pursuant to Section 301
-----------
with respect to any Securities), shall be applicable to such Securities and MCC
may at its option by Board Resolution, at any time, with respect to such
Securities elect to have Section 1402 (if applicable) or Section 1403 (if
------------ ------------
applicable) be applied to such Outstanding Securities upon compliance with the
conditions set forth below in this Article Fourteen.
----------------
Section 1402. Defeasance and Discharge. Upon MCC's exercise of the
------------------------
above option applicable to this Section 1402 with respect to any Securities of
------------
or within a series, MCC shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities on the date the
conditions set forth in Section 1404 are satisfied ("defeasance"). For this
------------
purpose, such defeasance means that MCC shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 1405 and the other Sections of this Indenture referred to in Paragraphs
- ------------
(a) and (b) below, and to have satisfied all of its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of MCC, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders of such Outstanding Securities to
receive, solely from the trust fund described in Section 1404 and as
------------
more fully set forth in such Section, payments in respect of the
-------
principal of (and premium, if any) and interest on such Securities
when such payments are due,
(b) MCC's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003,
------------ --- --- ---- ----
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and
(d) this Article Fourteen.
----------------
Subject to compliance with this Article Fourteen, MCC may exercise its option
----------------
under this Section 1402 notwithstanding the prior exercise of its option under
------------
Section 1403 with respect to such Securities.
- ------------
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<PAGE>
Section 1403. Covenant Defeasance. Upon MCC's exercise of the above
-------------------
option applicable to this Section 1403 with respect to any Securities of or
------------
within a series, MCC shall be released from its obligations under Section 1004,
------------
Section 1006 and Section 1007 and, if specified pursuant to Section 301, its
- ------------ ------------ -----------
obligations under any other covenant, with respect to such Outstanding
Securities on and after the date the conditions set forth in Section 1404 are
satisfied ("covenant defeasance"), and such Securities shall thereafter be
deemed to be not "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with Section 1004, Section 1006 and Section 1007 or such other
------------ ------------ ------------
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities, MCC may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other 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 501(d) or 501(i) or
-------------- ------
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
------------ ------------
to any Outstanding Securities of or within a series:
(a) MCC shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
-----------
provisions of this Article Fourteen applicable to it) as trust funds
----------------
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (i) an amount in such
currency, currencies or currency unit in which such Securities are
then specified as payable at Stated Maturity, (ii) Government
Obligations applicable to such Securities (determined on the basis of
the currency, currencies or currency unit in which such Securities are
then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities, money in an amount, or
(iii) a combination thereof, in any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge (i) the principal of (and premium, if any) and interest
on such Outstanding Securities on the Stated Maturity of such
principal (and premium, if any) or installment of principal or
interest, and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities on the day on which
such payments are due and payable in accordance with the terms of this
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<PAGE>
Indenture and of such Securities; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities.
Before such a deposit, MCC may give to the Trustee, in accordance with
Section 1102 hereof, a notice of its election to redeem all or any portion
------------
of such Outstanding Securities at a future date in accordance with the
terms of Securities of such series and Article Eleven hereof, which notice
--------------
shall be irrevocable. Such irrevocable redemption notice, if given, shall
be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which MCC is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as Sections 501(f) and 501(g) are concerned, at any
--------------- ------
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, MCC shall have
------------
delivered to the Trustee an Opinion of Counsel stating that (i) MCC has
received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture, there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, MCC shall have
------------
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(f) MCC shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
------------
under Section 1403 (as the case may be) have been complied with and an
------------
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to Paragraph (a) above and the related exercise of MCC's option
under Section 1402 or Section 1403 (as the case may be), registration is
------------ ------------
not required under the Investment Company Act of 1940, as amended, by MCC,
with respect to the trust funds
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<PAGE>
representing such deposit or by the Trustee for such trust funds, or
(ii) all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section 1404,
------------
such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations
which may be imposed on MCC in connection therewith pursuant to
Section 301.
-----------
Section 1405. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
- ----------------------------------------
last paragraph of Section 1003, all money and Government Obligations (or other
------------
property as may be provided pursuant to Section 301) (including the proceeds
-----------
thereof) deposited with the Trustee pursuant to Section 1404 in respect of any
------------
Outstanding Securities of any series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including MCC acting as its own Paying Agent) as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but such money need not
be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made
- ----------- ---------------
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
-----------
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
---------------
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
---------------
the indebtedness represented by such Security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any), and interest on such Security as the same becomes due out
of the proceeds yielded by converting (from time to time as specified below in
the case of any such election) the amount or other property deposited in respect
of such Security into the currency or currency unit in which such Security
becomes payable as a result of such election or Conversion Event based on a
commercially reasonable market exchange rate for such currency or currency unit
in effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
MCC shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
------------
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities.
Anything in this Article Fourteen to the contrary notwithstanding,
----------------
subject to Section 606, the Trustee shall deliver or pay to MCC from time to
-----------
time upon a MCC Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
------------
opinion of a nationally recognized firm of independent public
69
<PAGE>
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article Fourteen.
----------------
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called. A meeting
-----------------------------------------
of Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article Fifteen to make, give or take any request,
---------------
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings. (a) The Trustee
----------------------------------
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place as
------------
the Trustee shall determine. Notice of every meeting of Holders of Securities
of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
-----------
prior to the date fixed for the meeting.
(b) In case at any time MCC, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of Outstanding
Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in
------------
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then MCC or the Holders of Securities of such series in the amount
above specified, as the case may be, may call such meeting for such
purposes by giving notice thereof as provided in Paragraph (a) of this
Section 1502.
------------
Section 1503. Persons Entitled to Vote at Meetings. To be entitled
------------------------------------
to vote at any meeting of Holders of Securities of any series, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of MCC and its counsel.
Section 1504. Quorum; Action. The Persons entitled to vote a
--------------
majority in principal amount of Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders
70
<PAGE>
of Securities of such series; provided, however, that if any action is to be
taken at such meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a specified
percentage, which is less than a majority, in principal amount of Outstanding
Securities of a series, there shall be no quorum requirement. In the absence of
a required quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in the aggregate principal amount of Securities at the time
outstanding shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1502(a), except that such notice
---------------
need be given not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any adjourned meeting
shall state expressly the percentage of the principal amount of Outstanding
Securities of such series which shall constitute such required quorum.
Except as limited by the proviso to Section 902, any resolution
-----------
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the persons
entitled to vote a majority in aggregate principal amount of Outstanding
Securities represented at such meeting; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
-----------
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened by the affirmative vote of the
Holders of such specified percentage in principal amount of Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section 1504 shall be
------------
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
------------
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of all Outstanding Securities affected thereby, or
of the Holders of such series and one or more additional series:
(i) there shall be no quorum requirement for such meeting; and
(ii) the principal amount of Outstanding Securities affected
thereby that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other
71
<PAGE>
action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this Indenture.
Section 1505. Determination of Voting Rights; Conduct of Meetings.
---------------------------------------------------
(a) The Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
-----------
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
- -----------
witnessed or guaranteed by any trust company, bank or banker. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
-----------
other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by MCC or by
Holders of Securities as provided in Section 1502(b), in which case MCC or the
---------------
Holders of Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
Section 1506. Counting Votes and Recording Action of Meetings. The
-----------------------------------------------
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
------------
applicable, Section 1504. Each copy
------------
72
<PAGE>
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to MCC and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
*****
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
MISSISSIPPI CHEMICAL CORPORATION
By:
---------------------------------------
Title:
------------------------------------
Attest:
- -------------------------------
Title:
-------------------------
HARRIS TRUST AND SAVINGS BANK
By:
---------------------------------------
Title:
------------------------------------
Attest:
- -------------------------------
Title:
-------------------------
73
<PAGE>
STATE OF __________________ )
) ss:
COUNTY OF _________________ )
On the ______ day of November, 1997, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at ______________________________, that he/she is
______________________ MISSISSIPPI CHEMICAL CORPORATION, one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
-------------------------------------
Notary Public
Commission Expires
-------------------------------------
STATE OF __________________ )
) ss:
COUNTY OF _________________ )
On the ______ day of November, 1997, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at ___________________________________, that he/she is a
_____________________ of HARRIS TRUST AND SAVINGS BANK, one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
-------------------------------------
Notary Public
Commission Expires
-------------------------------------
74
<PAGE>
Exhibit 5
[LETTERHEAD OF HUGHES & LUCE, L.L.P. APPEARS HERE]
Mississippi Chemical Corporation
Highway 49 East
Yazoo City, Mississippi 39194
Ladies and Gentlemen:
We have acted as special counsel to Mississippi Chemical Corporation, a
Mississippi Corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-3 (No. 333-38619) filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, with respect to the contemplated issuance by the Company from time to
time of up to $300,000,000 aggregate initial offering price of debt securities
("Securities"). The Securities are to be issued pursuant to an Indenture to be
entered into by the Company and Harris Trust and Savings Bank, as Trustee (the
"Indenture").
In rendering this opinion, we have examined and relied upon executed
originals, counterparts or copies of such documents, records and certificates
(including certificates of public officials and officers of the Company) as we
considered necessary or appropriate for enabling us to express the opinions set
forth herein. In all such examinations, we have assumed the authenticity and
completeness of all documents submitted to us as originals and the conformity to
originals and completeness of all documents submitted to us as photostatic,
conformed, notarized or certified copies.
Based on the foregoing, we are of the opinion that the Securities have been
duly authorized and, when the Registration Statement has become effective, the
specific terms of a particular Security have been established in accordance with
the Indenture and such Security has been duly executed, authenticated, issued
and delivered in accordance with the Indenture against payment therefor, such
Security will be legally issued and will constitute the valid and legally
binding obligation of the Company in accordance with its terms.
In connection with our opinion above, we have assumed that the Indenture
will be duly executed and delivered in substantially the form filed as an
exhibit to the above Registration Statement and that at or prior to the time of
delivery of each Security, the authorization of the Securities will be
applicable to each Security, will not be modified or rescinded and there will
not have occurred any change in law affecting the validity or enforceability of
such Security. We have also assumed that none of the terms of any Security to
be established subsequent to the date
<PAGE>
[LOGO OF HUGHES & LUCE, L.L.P. APPEARS HERE]
- --------------------------------------------------------------------------------
November , 1997
Page 2
hereof nor the issuance and delivery of such Security, will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding on the Company, or any restriction imposed by any
court or governmental body having jurisdiction over the Company.
This opinion may be filed as an exhibit to the Registration Statement. We
also consent to the reference to this firm as having passed on the validity of
the Securities under the caption "Legal Matters" in the Registration Statement.
In giving this consent, we do not admit that we are included in the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
HUGHES & LUCE L.L.P.
<PAGE>
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION> Three months ended
September 30 Fiscal years ended June 30
------------------- ---------------------------------------------------------
1997 1996 1997 1996 1995 1994 1993
------------------- ---------------------------------------------------------
Earnings:
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing operations $ 7,352 $15,260 $ 90,587 $ 88,493 $ 81,408 $ 32,933 $ 26,378
Adjustments
Fixed charges, as below 4,758 563 10,081 1,207 $ 2,465 $ 5,061 $ 6,375
Interest capitalized (1,981) (326) (3,858) (10) (231) (2) (1,027)
------------------- ---------------------------------------------------------
Earnings as adjusted $10,129 $15,497 $ 96,810 $ 89,690 $ 83,642 $ 37,992 $ 31,726
======= ======= ======== ========= ========= ========= =========
Fixed charges:
Interest on indebtedness, expensed or
capitalized $4,495 $ 384 $ 8,942 $ 715 $ 2,021 $ 4,655 $ 5,994
Portion of rent expense representative
of the interest factor 263 179 1,139 492 444 406 381
------------------- ---------------------------------------------------------
Total fixed charges $ 4,758 $ 563 $ 10,081 $ 1,207 $ 2,465 $ 5,061 $ 6,375
======= ======= ======== ========= ========= ========= =========
Ratio of earnings to fixed charges 2.1 27.5 9.6 74.3 33.9 7.5 5.0
=================== =========================================================
Ratio of earnings to fixed charges
(including discontinued operations) 2.4 2.0
=================================
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in Amendment No. 1 to this registration statement on Form S-3 (Reg.
No. 333-38619) of our report dated July 25, 1997, included in the Company's
annual report and incorporated by reference in the Company's Form 10-K for the
year ended June 30, 1997, and to all references to our Firm included in this
registration statement. We also consent to the reference to our Firm under the
caption "Experts."
/s/ ARTHUR ANDERSEN LLP
Memphis, Tennessee
November __, 1997
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(I.R.S. Employer
(State of Incorporation) Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2908
(Name, address and telephone number for agent for service)
MISSISSIPPI CHEMICAL CORPORATION
(Name of Obligor)
Mississippi 64-0292638
(I.R.S. Employer
(State of Incorporation) Identification No.)
3622 Highway 49 East
Yazoo City, Mississippi 39194
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors
of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation, File
No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 24th day of October 1997.
Harris Trust and Savings Bank
By: /s/ DGDonovan
-------------------------
D. G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
Harris Trust and Savings Bank
By: /s/ DGDonovan
-------------------------
D.G. Donovan
Assistant Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1997, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO OF HARRIS BANK APPEARS HERE]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on June 30, 1997, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin..................... $1,707,824
Interest bearing balances............................................... $628,916
Securities:....................................................................
a. Held-to-maturity securities $0
b. Available-for-sale securities $3,766,727
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBF's:
Federal funds sold...................................................... $275,425
Securities purchased under agreements to resell......................... $0
Loans and lease financing receivables:
Loans and leases, net of unearned income................................ $8,346,198
LESS: Allowance for loan and lease losses.............................. $110,230
----------------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b).................................................... $8,235,968
Assets held in trading accounts................................................ $164,281
Premises and fixed assets (including capitalized leases)....................... $199,292
Other real estate owned........................................................ $524
Investments in unconsolidated subsidiaries and associated companies............ $69
Customer's liability to this bank on acceptances outstanding................... $46,107
Intangible assets.............................................................. $287,575
Other assets................................................................... $670,230
-------------
TOTAL ASSETS $15,982,938
=============
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
Deposits:
<S> <C>
In domestic offices.......................................................... $9,243,162
Non-interest bearing.................................................... $3,411,145
Interest bearing........................................................ $5,832,017
In foreign offices, Edge and Agreement subsidiaries, and IBF's............... $1,738,871
Non-interest bearing.................................................... $34,386
Interest bearing........................................................ $1,704,485
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds purchased & securities sold under agreements to repurchase...... $2,985,911
Trading Liabilities 62,083
Other borrowed money:..........................................................
a. With remaining maturity of one year or less $244,781
b. With remaining maturity of more than one year $0
Bank's liability on acceptances executed and outstanding $46,107
Subordinated notes and debentures.............................................. $325,000
Other liabilities.............................................................. $119,695
-------------
TOTAL LIABILITIES $14,765,610
=============
EQUITY CAPITAL
Common stock................................................................... $100,000
Surplus........................................................................ $600,715
a. Undivided profits and capital reserves..................................... $534,395
b. Net unrealized holding gains (losses) on available-for-sale securities ($17,782)
-------------
TOTAL EQUITY CAPITAL $1,217,328
=============
Total liabilities, limited-life preferred stock, and equity capital............ $15,982,938
=============
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
7/30/97
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD JAFFEE
Directors.
4
