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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 25, 1997 (November 25, 1997)
Mississippi Chemical Corporation
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Mississippi 001-12217 64-0292638
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(STATE OR OTHER (COMMISSION FILE (IRS EMPLOYER
JURISDICTION OF NUMBER) IDENTIFICATION NO.)
INCORPORATION)
P.O. Box 388, Yazoo City, Mississippi 39194
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(601) 746-4131
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ITEM 5. OTHER EVENTS.
On November 20, 1997, Mississippi Chemical Corporation (the "Company")
entered into an underwriting agreement relating to the sale by the Company of
its $200,000,000 aggregate principal amount 7 1/4% Notes due November 15, 2017
(the "Notes").
Information concerning this offering is included or incorporated by
reference in the Prospectus which constitutes part of the Company's Registration
Statement on Form S-3 (Registration No. 333-38619), as supplemented by the
Prospectus Supplement dated November 20, 1997.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1(a) Underwriting Agreement.
4(a) Indenture.
4(b) Form of Notes.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: November 24, 1997 MISSISSIPPI CHEMICAL CORPORATION
By: /s/ William L. Smith
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William L. Smith
General Counsel
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EXHIBIT 1(a)
EXECUTION COPY
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MISSISSIPPI CHEMICAL CORPORATION
________________________________________
$200,000,000 7 1/4% Senior Notes due 2017
________________________________________
___________________
UNDERWRITING AGREEMENT
DATED AS OF NOVEMBER 20, 1997
___________________
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
NESBITT BURNS SECURITIES INC.
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Mississippi Chemical Corporation
UNDERWRITING AGREEMENT
----------------------
November 20, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
NESBITT BURNS SECURITIES INC.
As representatives of the
several underwriters
named in Schedule I hereto
277 Park Avenue
New York, New York 10172
Dear Ladies and Gentlemen:
Mississippi Chemical Corporation, a Mississippi corporation (the
"COMPANY"), proposes to issue and sell to the underwriters named in Schedule I
hereto (the "Underwriters") $200,000,000 in aggregate amount of its 7 1/4%
Senior Notes due 2017 (the "SECURITIES"). The Securities will be issued
pursuant to an Indenture, dated as of November 25, 1997 (the "INDENTURE"),
between the Company and Harris Bank and Trust Company, as trustee (the
"TRUSTEE").
Section 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3 (File No. 333-
38619), including a preliminary prospectus relating to the registration of the
Securities which may be offered from time to time by the Company in accordance
with Rule 415 under the Act. Such registration statement, as so amended, has
been declared effective by the Commission and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"). Such
registration statement (as amended, if applicable), on the one hand, and the
prospectus constituting a part thereof and the prospectus supplement relating to
the offering of the Securities provided to the Underwriters by the Company for
use (whether or not such prospectus supplement is required to be filed with the
Commission by the Company pursuant to the Act) (the "PROSPECTUS SUPPLEMENT"), on
the other hand, including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the Act, the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "EXCHANGE ACT") are referred to herein
as the "REGISTRATION STATEMENT" and the "PROSPECTUS," respectively; provided,
however, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of the Securities to which it
relates. Any registration statement (including any amendment or supplement
thereto or information which is deemed part thereof) filed by the Company under
Rule 462(b) of the Act (a "RULE 462(B) REGISTRATION STATEMENT") shall be deemed
to be part of the "Registration Statement" and any prospectus or any term sheet
as contemplated by Rule 434 of the Act (a "TERM SHEET") (including any amendment
or supplement thereto or information which is deemed part thereof) included in
such registration statement shall be deemed to be part of the "Prospectus." All
references in this Agreement to financial statements and schedules and other
information which is "contained,""included," "stated" or "described" in the
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Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to include the filing
of any document under the Exchange Act which is or is deemed to be incorporated
by reference, without limitation, even though without specifically stated, in
the Registration Statement or the Prospectus, as the case may be. Capitalized
terms used but not otherwise defined herein shall have the meanings given to
those terms in the Prospectus.
Section 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase Securities from the Company the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule 1 hereto at 99.737% of the principal amount thereof(the "PURCHASE
PRICE").
Section 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus, including any applicable
prospectus supplement.
Section 4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Securities shall be made, subject to Section 9 hereof, at 9:00
A.M., New York City time, on the third business day following the date hereof
or, if pricing takes place after 4:30 P.M., New York City time, on the fourth
business day following the date hereof, (the "CLOSING DATE") at such place as
you shall designate. The Closing Date and the location of delivery of and
payment for the Securities may be varied by agreement between you and the
Company.
Certificates for the Securities shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the business day prior to the Closing Date. Certificates in definitive form
evidencing the Securities shall be delivered to you on the Closing Date, with
any transfer taxes thereon duly paid by the Company, for the respective accounts
of the several Underwriters, against payment to the Company of the Purchase
Price therefor by wire transfer of Federal or other funds immediately available
in New York City.
Section 5. Agreements of the Company. The Company agrees with you:
(a) In respect of the offering of the Securities, the Company will prepare
a Prospectus Supplement setting forth the aggregate principal amount of
Securities covered thereby and any material terms not otherwise described in the
base Prospectus, the name of each Underwriter participating in the offering and
the name of each additional co-manager, if any, participating in the offering,
the principal amount of Securities which each severally has agreed to purchase,
the price at which the Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, if any, the selling concession
and reallowance, if any and such other information as you and the Company deem
appropriate in connection with the offering of the Securities; the Company will,
by the close of business in New York on the business day immediately succeeding
the date hereof, transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424(b) under the Act and will furnish to the
Underwriters, without charge, as many copies of the Prospectus as you shall
reasonably request; and if the Company elects to rely on Rule 434 under the Act,
the Company will prepare the Term Sheet in a manner that complies with the
requirements of Rule 434 and will furnish to the
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Underwriters, without charge, as many copies of the Prospectus as you shall
reasonably request and will file or transmit for filing with the Commission the
Prospectus complying with Rule 434(c)(2) under the Act in accordance with Rule
424(b) of the Act by the close of business in New York City on the business day
immediately succeeding the date hereof.
(b) At any time when the Prospectus is required to be delivered under the
Act or the Exchange Act in connection with sales of Securities, to advise you
promptly and, if requested by you, to confirm such advice in writing, (i) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information, (ii)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, (iii) when any amendment to the Registration
Statement becomes effective, (iv) if the Company is required to file a Rule
462(b) Registration Statement after the effectiveness of this Agreement, when
the Rule 462(b) Registration Statement has become effective and (v) of the
happening of any event during the period referred to in paragraph (d) below
which makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) To furnish to you, without charge, three signed copies of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration Statement
as so filed and of each amendment to it, without exhibits, as you may reasonably
request.
(d) To prepare the Prospectus in a form approved by you and to file the
Prospectus in such form with the Commission within the applicable period
specified in Rule 424(b) under the Act; not to file any further amendment to the
Registration Statement or any Rule 462(b) Registration Statement and not to make
any amendment or supplement to the Prospectus of which you shall not previously
have been advised or to which you shall reasonably object after being so
advised; and to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement, Term Sheet or
amendment or supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Securities by you, and to use its best
efforts to cause any such amendment to the Registration Statement to become
promptly effective.
(e) Prior to 10:00 A.M. New York City time on the first business day after
the date of this Agreement and from time to time thereafter for such period as
in the opinion of counsel for the Underwriters a prospectus is required by law
to be delivered in connection with sales by an Underwriter or a dealer, to
furnish in New York City to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e), any event shall occur
as a result of which, in the opinion of counsel for the Underwriters, it becomes
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
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the Prospectus will comply with law, and to furnish to each Underwriter and to
such dealers as you shall specify, such number of copies thereof as such
Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Securities, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request, to continue such qualification in effect so long as required
for distribution of the Securities and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, the Company will not be
required to qualify as a foreign corporation, file a general consent to service
of process in any such jurisdiction, subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject, or
provide any undertaking or make any change in its charter or by-laws that the
Board of Directors of the Company reasonably determines to be contrary to the
best interests of the Company and its stockholders.
(h) To make generally available to its stockholders as soon as practicable
but not later than 90 days after the close of the period covered thereby, an
earnings statement covering the twelve-month period beginning not later than the
earlier of the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 of the Rules and Regulations) of the
Registration Statement that shall satisfy the provisions of Section 11(a) of the
Act, and to advise you in writing when such statement has been so made
available.
(i) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Securities or furnished to or
filed with the Commission or any national securities exchange on which any class
of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(j) During the period when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of the Securities, to file
all documents required to be filed by it with the Commission pursuant to Section
13, 14 or 15 of the Exchange Act within the time periods required by the
Exchange Act.
(k) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel
and the Company's accountants in connection with the registration and delivery
of the Securities under the Act and all other fees or expenses in connection
with the preparation, printing, filing and distribution of the Registration
Statement (including financial statements and exhibits), any preliminary
prospectus, the Prospectus and all amendments and supplements to any of the
foregoing prior to or during the period specified in paragraph (e), including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement, (iv) all expenses in connection with the registration
or qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the several states and all costs of printing or producing any
Blue Sky Memoranda in connection therewith (including the filing fees and fees
and disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Securities by the National
Association of Securities Dealers, Inc., (vi) the cost of printing certificates
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representing the Securities, (vii) the costs and charges of any transfer agent,
registrar and/or depositary, (viii) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section, and (ix) any fees payable to rating agencies
for the rating of the Securities. It is understood, however, that, except as
provided in this Section and Section 7 hereof, the Underwriter will pay all of
their own costs and expenses, including the fees of its counsel, transfer taxes
on resale of any of the Securities by it, and any advertising expenses connected
with any offers it may make.
(l) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement and any applicable Terms
Agreement by the Company prior to the Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the underwritten securities.
(m) The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus Supplement under "Use
of Proceeds."
(n) The Company will prepare and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the Act copies of the Prospectus.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter as of the date hereof and the
Closing Date that:
(a) The Company meets the requirements for the use of Form S-3 under the
Act. The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or threatened by the Commission. No order
preventing or suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission or by the state securities authority of
any jurisdiction.
(b) The Registration Statement and the Prospectus, including the financial
statements, schedules and related notes included in the Prospectus and, if
applicable, any Term Sheet to the Prospectus, as of the date hereof and at the
time the Registration Statement became effective, and when any post-effective
amendment to the Registration Statement or Rule 462(b) Registration Statement
becomes effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all applicable
provisions of the Act and will contain all statements required to be stated
therein in accordance with the Act. The Prospectus, including the financial
statements, schedules and related notes included in the Prospectus, and if
applicable, any Term Sheet to the Prospectus, as of the date hereof and at the
time the Registration Statement became effective, and at the Closing Date, and
when any post-effective amendment to the Registration Statement or Rule 462(b)
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, did or will comply in all material
respects with all applicable provisions of the Act and will contain all
statements required to be stated therein in accordance with the Act. On the
date the Registration Statement was declared effective, on the date hereof, on
the date of filing of any Rule 462(b) Registration Statement and on the Closing
Date no part of the Registration Statement or any amendment did or will contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading. On the date the Registration Statement was declared effective, on
the date hereof, as of its date, on the date of
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filing of any Rule 462(b) Registration Statement and at the Closing Date, the
Prospectus and the Prospectus Supplement did not or will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. If a Rule 462(b) Registration Statement is filed in
connection with the offering and sale of the Securities, the Company will have
complied or will comply with the requirements of Rule 111 under the Act relating
to the payment of filing fees therefor. The foregoing representations and
warranties in this Section 6(b) do not apply to (i) that part of the
Registration Statement that constitutes the Trustee's Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act or (ii) any
statements or omissions made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Company by the
Underwriters specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. The Company has not
distributed any offering material in connection with the offering or sale of the
Securities other than the Registration Statement, the Preliminary Prospectus (as
hereinafter defined), the Prospectus or any other materials, if any, permitted
by the Act.
(c) The preliminary prospectus supplement, dated November 7, 1997, filed
pursuant to Rule 424 under the Act (the "Preliminary Prospectus") and each
462(b) Registration Statement, if any, complied or will comply when so filed in
all material respects with the Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph (c) do not apply to statements or
omissions in any Preliminary Prospectus or 462(b) Registration Statement based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(d) Each of the Company and its subsidiaries have been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties, and is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the financial condition or results of operations of
the Company and its subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) The Indenture has been duly qualified under the TIA and has been duly
authorized, executed and delivered by the Company and is a valid and binding
instrument, enforceable against the Company in accordance with its terms.
(g) All of the outstanding shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature.
(h) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to the Underwriters against payment
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therefor as provided by this Agreement, will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the Company, enforceable
in accordance with their terms, except as (i) enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent transfer or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. When issued, the Securities will conform to the description
contained in the Prospectus under the caption -- Description of Notes.
(i) Neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(j) The execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, or violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property.
(k) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is or could be a party or to which
any of their respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described; nor are there any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS") or any provisions of
the Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder, except for such violations which, singly
or in the aggregate, would not have a material adverse effect on the financial
condition or results of operation of the Company and its subsidiaries, taken as
a whole.
(m) Each of the Company and its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("PERMITS"), including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease and operate its respective properties and
to conduct its business and is in compliance with all terms and conditions
thereof; and no event has occurred which allows or, after notice or lapse of
time or both, would allow, revocation or termination of such permits or results
or, after notice or lapse of time or both, would result in any other impairment
of the rights of the holder of any such permit; except where such failure to
have, or comply with the terms or conditions of, such permits, the occurrence of
any such event or the presence of any such
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restriction would not, singly or in the aggregate, have a material adverse
effect on the financial condition or results of operations of the Company and
its subsidiaries, taken as a whole.
(n) In the ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that except as disclosed in the Registration Statement,
there are no such costs which would, singly or in the aggregate, have a material
adverse effect on the financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(o) This Agreement has been duly authorized, executed and delivered by the
Company.
(p) Arthur Andersen LLP, who have certified certain financial statements of
the Company and delivered their report with respect to the audited consolidated
financial statements and schedules incorporated by reference into the
Registration Statement and each Prospectus, are independent public accountants
with respect to the Company and its subsidiaries as required by the Act.
(q) The audited consolidated financial statements, together with related
schedules and notes incorporated by reference into the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(r) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(s) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the
Securities registered pursuant to the Registration Statement.
(t) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent.
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(u) There are no contracts or documents of the Company or any of its
subsidiaries that are required to be filed as exhibits to the Registration
Statement or to any documents incorporated by reference therein by the Act or
the Exchange Act that have not been so filed.
(v) The Securities, when issued, will be rated as "investment grade
securities" by a "nationally recognized statistical rating organization," as
such term is defined for purpose of Rule 436(g)(2) under the Act.
(w) The New Credit Facility referenced in the Prospectus Supplement has
been duly authorized and on the Closing Date shall have been duly executed and
delivered by the parties thereto.
Section 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter, its
directors, its officers and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with defending or investigating any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages and liabilities and judgements purchased Securities, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Securities to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgement.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to such Underwriter but only with reference
to information relating to such Underwriter furnished in writing to the Company
by such Underwriter through you expressly for use in the Registration Statement
(or any amendment thereto), the Prospectus (or any amendment or supplement
thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to paragraph (a) or (b) of this
Section 7 (the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify
the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY")
in writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of
9
<PAGE>
which indemnity may be sought pursuant to both paragraphs (a) and (b) of this
Section 7, the Underwriter shall not be required to assume the defense of such
action pursuant to this paragraph (c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of such Underwriter). Any
indemnified party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Donaldson,
Lufkin & Jenrette Securities Corporation, in the case of parties indemnified
pursuant to paragraph (a) of this Section 7, and by the Company, in the case of
parties indemnified pursuant to paragraph (b) of this Section 7. The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than ten business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the
Underwriters shall
10
<PAGE>
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter that could have given rise
to such losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7(d) are
several in proportion to the respective number of Securities purchased by each
of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
Section 8. Conditions of Underwriters' Obligation. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date with the same force and
effect as if made on and as of the Closing Date, all of the Company's agreements
hereunder have been complied with and all of the conditions herein contained and
required to be compiled with or satisfied by the Company on or prior to the
Closing Date have been satisfied.
(b) At the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission. The Prospectus was filed with the Commission pursuant to Rule
424 within the applicable time period required by Rule 424.
(c) On or after the date hereof there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the
direction of the possible change, in the rating of any of the Company's
securities (including, without limitation, the placing of any securities on
negative or developing watch or negative or developing outlook) by any
"nationally recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date
11
<PAGE>
of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the capital stock or
in the long-term debt of the Company or any of its subsidiaries and (iii)
neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause (i), (ii) or (iii), individually or in the aggregate,
is material and adverse.
(e) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Charles O. Dunn, President and Chief Executive Officer
of the Company, and Timothy A. Dawson, Vice President--Finance and Chief
Financial Officer, in their capacities as such, confirming the matters set forth
in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of William L.
Smith, General Counsel for the Company, to the effect that:
(i) each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and is
in good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights;
(iv) the Securities have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Securities will not be subject to any preemptive or similar
rights;
(v) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, free and clear of
any security interest, claim, lien, encumbrance or adverse interest of any
nature;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
(vii) neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor any of its subsidiaries is
in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of
12
<PAGE>
its subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound;
(viii) the execution, delivery and performance of this Agreement by
the Company, compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, or violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property;
(ix) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is or could be a party or to which any of their respective
property is or could be subject that are required to be described in the
Registration Statement or the Prospectus and are not so described, or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required;
(x) except as set forth in the Registration Statement, to the best of
such counsel's knowledge, after due inquiry, neither the Company nor any of its
subsidiaries has violated any Environmental Laws, nor any federal or state law
relating to discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or the rules and
regulations promulgated thereunder, which in each case might result in any
material adverse effect; and
(xi) to the best of such counsel's knowledge, (A) the Company and each
of its subsidiaries has such permits, licenses, franchises and authorizations or
governmental or regulatory authorities ("PERMITS"), including, without
limitation, under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its business in the
manner described in the Prospectus; (B) after due inquiry, the Company and each
of its subsidiaries has fulfilled and performed all of its obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time, would allow, revocation or termination thereof or results in
any other impairment of the rights of the holder of any such permit; except in
the case clause of (A) and (B), where failure to have such permits, the failure
to fulfill or perform such obligations or the revocation or termination of any
such permit would not, individually or in the aggregate, result in a material
adverse effect, subject in each case to such qualification as may be set forth
in the Registration Statement.
The opinion of William L. Smith described in paragraph (f) above shall be
rendered to you at the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion (satisfied to
you and counsel to the Underwriters), dated the Closing Date, of Hughes & Luce,
L.L.P., counsel to the Company to the effect that:
13
<PAGE>
(i) the Indenture has been duly qualified under the TIA and has been
duly authorized, executed and delivered and constitutes a legal, valid and
binding instrument enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent
transfer, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to principles
relating to the availability of equitable remedies to the extent that adequate
remedies at law may not exist); and the Securities have been duly authorized
and, when executed and authenticated in accordance with the Indenture and
delivered to and paid for by the purchasers thereof, will constitute legal,
valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, fraudulent transfer,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to principles relating to the
availability of equitable remedies to the extent that adequate remedies at law
my not exist);
(ii) the Registration Statement has become effective under the Act and
no stop order suspending its effectiveness has been issued and no proceedings
for that purpose are, to the best of such counsel's knowledge after due inquiry,
pending before or contemplated by the Commission, the Prospectus was filed with
the Commission pursuant to Rule 424 within the applicable time period required
by Rule 424;
(iii) the Indenture and the Securities conform in all material
respects to the descriptions thereof under the captions "Description of
Securities" and "Description of Notes" in the Prospectus;
(iv) neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor any of its subsidiaries is
in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective property is
bound;
(v) the execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is known to such counsel and material to the Company and its subsidiaries, taken
as a whole, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property is
bound, or violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their respective
property;
(vi) the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended;
(vii) to the best of such counsel's knowledge after due inquiry,
there are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
14
<PAGE>
Company or to require the Company to include such securities with the Securities
registered pursuant to the Registration Statement;
(viii) (A) the Registration Statement and the Prospectus, including
each document incorporated by reference therein and any supplement or amendment
thereto (except for the financial statements and other financial data included
therein as to which no opinion need be expressed) comply as to form with the
Act, (B) such counsel has no reason to believe that at the time the Registration
Statement became effective or on the date of this Agreement, the Registration
Statement and the prospectus included therein (except for the financial
statements and other financial data as to which such counsel need not express
any belief) contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) such counsel has no reason to believe
that the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial data, as aforesaid) contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
With respect to the matters covered by clause (viii) of paragraph (g)
counsel for the Company may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Latham & Watkins, counsel for the Underwriters, as to certain
matters relating to the Registration Statement as the Underwriters may
reasonably require.
(i) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Arthur Andersen LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(j) You shall have received on the Closing Date an executed copy of the New
Credit Facility referenced in the Prospectus Supplement between the Company and
Harris Trust and Savings Bank as agent, as certified by an officer of the
Company.
(k) The Company shall not have failed at or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company at or prior to the Closing Date.
Section 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Company if any of the following has occurred: (i)
any outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and would, in your judgment, make it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus, (ii)
the suspension or material limitation of trading in securities on the New York
Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices
15
<PAGE>
for securities on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, (v) the declaration of a banking moratorium by either federal or New
York State authorities or (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
your opinion has a material adverse effect on the financial markets in the
United States.
If on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase the Securities, which it or they have agreed to purchase
hereunder on such date and the aggregate number of Securities, which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed or
refused to purchase is not more than one-tenth of the total number of Securities
to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the number of
Securities set forth opposite its name in Schedule I bears to the total number
of Securities which all the non-defaulting Underwriters, as the case may be,
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Securities, which such defaulting Underwriter or Underwriters, as
the case may be, agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Securities, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Securities, without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Securities
and the aggregate number of Securities with respect to which such default occurs
is more than one-tenth of the aggregate number of Securities to be purchased by
all Underwriters and arrangements satisfactory to you and the Company for
purchase of such Securities are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter and the Company. In any such case which does not result
in termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
Section 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to
Mississippi Chemical Corporation, Owen Cooper Building, Highway 49 East, Yazoo
City, Mississippi 39194, Attention: President and Chief Executive Officer and
(b) if to any Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette
Securities Corporation, 277 Park Avenue, New York, New York 10172, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
16
<PAGE>
If for any reason the Securities are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, the
Underwriters' directors and officers, any controlling persons referred to
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
* * * * *
17
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
MISSISSIPPI CHEMICAL CORPORATION
By: /s/ ROBERT E. JONES
-----------------------------
Name: Robert E. Jones
Title: Senior Vice President -
Corporate Development
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
NESBITT BURNS SECURITIES INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ PETER BACON
----------------------------
Name: Peter Bacon
Title: Managing Director
18
<PAGE>
SCHEDULE I
----------
<TABLE>
<CAPTION>
Principal Amount of
2017 Notes to be
Underwriters Purchased
- ------------ -------------------
<S> <C>
Donaldson, Lufkin & Jenrette
Securities Corporation $190,000,000
Nesbitt Burns Securities Inc. $ 10,000,000
Total............................ $200,000,000
</TABLE>
19
<PAGE>
EXHIBIT 4(a)
MISSISSIPPI CHEMICAL CORPORATION
Issuer
---------------
Indenture
Dated as of November 25, 1997
---------------
HARRIS TRUST AND SAVINGS BANK
Trustee
Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
PARTIES................................................................... 1
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
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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... 49
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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..... 52
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
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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.......... 68
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.......................................... 71
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
iv
<PAGE>
MISSISSIPPI CHEMICAL CORPORATION
Reconciliation and tie between TIA and Indenture
TIA Section Indenture
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
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 25, 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
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(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.
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"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.
------------
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<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
6
<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
7
<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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"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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(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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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
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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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(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
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(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
<PAGE>
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
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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
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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
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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
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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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(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
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(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
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<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,
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<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,
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<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
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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
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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
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(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
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<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
<PAGE>
--------------------
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
<PAGE>
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
55
<PAGE>
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.
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.
56
<PAGE>
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; 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.
57
<PAGE>
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:
(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.
58
<PAGE>
(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 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
- ------------ ------------
59
<PAGE>
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 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.
60
<PAGE>
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 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
61
<PAGE>
(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, 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
62
<PAGE>
Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
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
63
<PAGE>
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 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
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<PAGE>
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 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
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<PAGE>
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.
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.
----------------
66
<PAGE>
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.
- ------------
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
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<PAGE>
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 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
68
<PAGE>
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 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
69
<PAGE>
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 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.
70
<PAGE>
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 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
71
<PAGE>
(ii) the principal amount of Outstanding Securities affected
thereby that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other 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
72
<PAGE>
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 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: /s/ ROBERT E. JONES
-----------------------------
Title: Senior Vice President -
Corporate Development
Attest:
/s/ ROSALYN B. GLASCOE
- ------------------------------
Title: Corporate Secretary
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. BARTOLINI
-----------------------------
Title: Vice President
Attest:
/s/ D.G. DONOVAN
- ------------------------------
Title: Assistant Secretary
73
<PAGE>
STATE OF MISSISSIPPI )
) ss:
COUNTY OF YAZOO )
On the 21st day of November, 1997, before me personally came Robert E.
Jones, to me known, who, being by me duly sworn, did depose and say that he
resides at Yazoo City, Mississippi, that he is Sr. Vice President - Corporate
Dev. MISSISSIPPI CHEMICAL CORPORATION, one of the parties described in and which
executed the foregoing instrument, and that he signed his name thereto by
authority of the Board of Directors.
[NOTARIAL SEAL]
/s/ OLIVE OLIVIA LEIGLER
------------------------------------
Notary Public
Commission Expires
July 14, 2001
------------------------------------
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On the 25th day of November, 1997, before me personally came J.
Bartolini, to me known, who, being by me duly sworn, did depose and say that
he/she resides at ___________________________________, that he/she is a Vice
President 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]
/s/ KIMBERLEY LANGE
-----------------------------------
Notary Public
Commission Expires
12-14-97
-----------------------------------
74
<PAGE>
EXHIBIT 4(b)
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED PRINCIPAL AMOUNT
No.: 1 $200,000,000
CUSIP No.: 605288AA7
MISSISSIPPI CHEMICAL CORPORATION
7 1/4% Note Due November 15, 2017
MISSISSIPPI CHEMICAL CORPORATION, a Mississippi corporation (hereinafter
called the "Company," which term shall include any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co., or registered assigns, upon presentation, the principal sum of
TWO HUNDRED MILLION DOLLARS on November 15, 2007, and to pay interest on the
outstanding principal amount thereon from November 25, 1997, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on November 15 and May 15, in each year, commencing May 15,
1998, at the rate of 7 1/4% per annum, until the entire principal amount hereof
is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be the May 1 and November 1 (whether or not
a Business Day) immediately preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may either be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes of this series not more than 15 days and not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. Payment of the principal of and
interest on this Note will be made at the office or agency of the Trustee in the
City of New York, State of New York, or elsewhere as provided in the Indenture,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
(a) check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register kept for the Notes pursuant
<PAGE>
to Section 305 of the Indenture (the "Note Register") or (b) transfer to an
account of the Person entitled thereto located inside the United States.
This Note is one or all of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of November 25, 1997 (herein called the
"Indenture"), between the Company and Harris Trust and Savings Bank (herein
called the "Trustee", which term includes any successor trustee under the
Indenture with respect to the Notes), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. This Note is one or all of the
series designated as the "7 1/4% Notes due November 15, 2017," limited in
aggregate principal amount to $200,000,000.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and the related defaults and Events of Default applicable to the Company, in
each case, upon compliance by the Company with certain conditions set forth in
the Indenture, which provisions apply to this Note.
The Notes are redeemable at the option of the Company at any time and from
time to time, in whole or in part, upon not less than 30 nor more than 60 days
notice to each Holder of such Notes, at a redemption price equal to the Make-
Whole Price. "Make-Whole Price" means an amount equal to the greater of (i) 100%
of the principal amount of such Notes plus accrued interest to the date of
redemption, (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the date of redemption
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 25 basis points, calculated as if the
principal amount were payable in full on November 15, 2007 or (iii) the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the date of redemption on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25
basis points. Unless the Company defaults in payment of the redemption price,
on and after the date of redemption, interest will cease to accrue on the Notes
or portions thereof called for redemption.
"Treasury Rate" means, with respect to any date of redemption, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such date of redemption.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes (determined as if the Notes mature on November
15, 2007 for purposes of (ii) above) that would be utilized at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes (determined as if the Notes mature on November 15, 2007 for
purposes of (ii) above).
<PAGE>
For purposes of (iii) above, prior to 2008, the Comparable Treasury Issue shall
be deemed to be the most recently issued 30-year United States Treasury
security.
"Comparable Treasury Price" means, with respect to any date of redemption,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such date of redemption, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities", or (ii) if such release (or any successor release) is
not published or does not contain such prices on such Business Day, (A) the
average of the Reference Treasury Dealer Quotations for such date of redemption
or (B) if the Trustee obtains fewer than two, the available Reference Treasury
Dealer Quotation.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of Donaldson, Lufkin & Jenrette
Securities Corporation and Nesbitt Burns Securities Inc. and their respective
successors; provided, however, that if any of the foregoing shall not be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any date of redemption, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such date of redemption.
The Holder of the Notes may elect to have such Notes (or any portion
thereof that is an integral multiple of $1,000) repaid on November 15, 2007 (or,
if such day is not a Business Day, the next succeeding Business Day) at 100% of
the principal amount of such Notes (or such portion thereof), together with
accrued and unpaid interest thereon to the date of repayment. In order for a
holder to exercise this option, the Company must receive at its office or agency
in New York, New York, during the period beginning on September 15, 2007 and
ending at 5:00 p.m. (New York City time) on October 15, 2007 (or if such day is
not a Business Day, the next succeeding Business Day), such Notes with the form
entitled "Option to Elect Repayment on November 15, 2007" attached to such Notes
duly completed. Any such notice received by the Company during the period
beginning on September 15, 2007 and ending at 5:00 p.m. (New York City time) on
October 15, 2007 (or if such day is not a Business Day, the next succeeding
Business Day) shall be irrevocable.
If an Event of Default with respect to the Notes of this series shall occur
and be continuing, the principal of the Notes of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
<PAGE>
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default and
offered the Trustee reasonable indemnity and the Trustee shall not have received
from the Holders of a majority in principal amount of the Notes of this series
at the time Outstanding a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any Place of Payment where the principal of and interest on this
Note are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar for the
Notes (the "Note Registrar") duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like
<PAGE>
aggregate principal amount of Notes of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by any notice to the contrary.
The obligations of the Company under the Indenture and this Note and all
documents delivered in the name of the Company in connection herewith and
therewith do not and shall not constitute personal obligations of the officers,
employees, agents or shareholders of the Company 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 the Company
for the payment of any claim thereunder or for the performance thereof and shall
not seek recourse against such officers, employees, agents or shareholders of
the Company or any of them or any of their personal assets for such
satisfaction. The performance of the obligations of the Company under the
Indenture and this Note and all documents delivered in the name of the Company
in connection therewith shall not be deemed a waiver of any rights or powers of
the Company or its shareholders under the Company's governing instruments.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed this 25th day of November, 1997.
MISSISSIPPI CHEMICAL CORPORATION
By: /s/ ROBERT E. JONES
-----------------------
Name: Robert E. Jones
Title: Senior Vice President -
Corporate Development
Attest:
By: /s/ ROSALYN B. GLASCOE
-------------------------
Name: Rosalyn B. Glascoe
Title: Corporate Secretary
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one or all of the Notes of the series designated "7 1/4% Notes Due
November 15, 2017" pursuant to the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK
as Trustee
By: /s/ D.G. DONOVAN
----------------------
Name: D.G. Donovan
Title: Assistant Vice President
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 1303 of the Indenture, check the box below:
If you want to elect to have only part of the Note purchased by the Issuer
pursuant to Section 1303 of the Indenture, state the principal amount (which
must be an integral multiple of $1,000) you elect to have purchased: $_______
Date: Your Signature:
------------- --------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
------------------------
Signature Guarantee
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
------------------------------------
(Please insert Social Security or
other identifying number of Assignee)
----------------------------------------------
(Please print or typewrite Name and Address,
including Zip Code, of Assignee)
the within Note of Mississippi Chemical Corporation and hereby does irrevocably
constitute and appoint Attorney to
-----------------------------------------
transfer said Note on the books of the within-named Company with full power of
substitution in the premises.
Dated:
------------------------
Signature:
---------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
------------------------------
NOTICE: Signature(s) must be guaranteed by an "eligible guarantor institution"
that is a member or participant in a "signature guarantee program" (e.g., the
Securities Transfer Agents Medallion Program, the Stock Exchange Medallion
Program of the New York Stock Exchange, Inc.).
