<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): March 3, 1998
THIOKOL CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-6179 36-2678716
-------- ------ ----------
(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of Identification Number)
Incorporation)
2475 Washington Boulevard, Ogden, Utah 84401-3498
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(Address of principal executive offices) (Zip Code)
(801) 629-2000
----------------------------------------------------
(Registrants' telephone number, including area code)
n/a
-------------------------------------------------------------
(former name or former address, if changed since last report)
<PAGE>
ITEM 5. OTHER EVENTS.
On March 3, 1998, Thiokol Corporation (the "Company") completed an
underwritten offering of $150,000,000 aggregate principal amount of its 6 5/8%
Senior Notes due 2008 (the "Securities") under its Registration Statement on
Form S-3, filed with the Securities and Exchange Commission on March 15, 1996
(File No. 333-01753), as amended by Amendment No. 1 filed with the Commission on
July 29, 1996 and Amendment No. 2 filed with the Commission on September 26,
1996 (as amended, the "Registration Statement"), a Prospectus, dated February
26, 1998, and the related Prospectus Supplement, dated February 26, 1998,
relating to the offer and sale by the Company of the Securities. The terms and
conditions of the Securities and related matters are set forth in the Indenture,
dated as of March 3, 1998, by and between the Company and Harris Trust and
Savings Bank, as trustee (the "Indenture") filed as Exhibit 4.1 hereto and,
pursuant to Sections 2.02 and 10.04 of the Indenture, the Officers' Certificate
filed as Exhibit 4.2 hereto. A form of the Company's 6 5/8% Senior Notes is
filed as Exhibit 4.3 hereto.
2
<PAGE>
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
------------------------------------------------------------------
(c) Exhibits
The following exhibits are filed as part of this Report:
No. Exhibit
--- -------
4.1 Indenture dated as of March 3, 1998, between Thiokol Corporation
and Harris Trust and Savings Bank.
4.2 Officers' Certificate dated as of March 3, 1998.
4.3 Form of 6 5/8% Senior Note due 2008.
3
<PAGE>
SIGNATURES
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 hereunto duly authorized.
THIOKOL CORPORATION
(Registrant)
By: /s/ Nicholas Iuanow
-------------------
Nicholas Iuanow
Vice President and
Treasurer
Dated: March 3, 1998
4
<PAGE>
EXHIBIT INDEX
4.1 Indenture dated as of March 3, 1998, between Thiokol Corporation and
Harris Trust and Savings Bank.
4.2 Officers' Certificate dated as of March 3, 1998.
4.3 Form of 6 5/8% Senior Note due 2008.
5
<PAGE>
THIOKOL CORPORATION,
as Issuer
and
HARRIS TRUST AND SAVINGS BANK,
as Trustee
---------------------------------
INDENTURE
dated as of March 3, 1998
--------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
<S> <C>
310(a)(1)................................................... 7.10
(a)(2).................................................... 7.10
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(a)(5).................................................... 7.10
(b)....................................................... 7.08; 7.10
(c)....................................................... N.A.
311(a)...................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312(a)...................................................... 2.05
(b)....................................................... 10.03
(c)....................................................... 10.03
313(a)...................................................... 7.06
(b)....................................................... 7.06
(c)....................................................... 7.06; 10.02
(d)....................................................... 7.06
314(a)...................................................... 4.03; 10.02
(b)....................................................... N.A.
(c)(1).................................................... 10.04
(c)(2).................................................... 10.04
(c)(3).................................................... N.A.
(d)....................................................... N.A.
(e)....................................................... 10.05
(f)....................................................... N.A.
315(a)...................................................... 7.01(b)(ii)
(b)....................................................... 7.05; 10.02
(c)....................................................... 7.01(a)
(d)....................................................... 7.01(d)
(e)....................................................... 6.11
316(a)(last sentence)....................................... 2.09
(a)(1)(A)................................................. 6.05
(a)(1)(B)................................................. 6.04
(a)(2).................................................... N.A.
(b)....................................................... 6.07
(c)....................................................... 2.14; 9.03
317(a)(1)................................................... 6.08
(a)(2).................................................... 6.09
(b)....................................................... 2.04
318(a)...................................................... 10.01
(b)....................................................... N.A.
(c)....................................................... 10.01
N.A. means not applicable.
</TABLE>
____________________________
*THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE.
<PAGE>
INDENTURE dated as of March 3, 1998 between Thiokol Corporation, a
Delaware corporation (the "Company"), and Harris Trust and Savings Bank, an
Illinois banking corporation, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of each series of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Certain Definitions.
- ------------ -------------------
"Affiliate" means any Person directly or indirectly controlling or
---------
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting stock, by
agreement or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or co-
-----
Registrar.
"Board of Directors" means the Board of Directors of the Company or any
------------------
authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Company 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, if appropriate).
"Business Day" means, unless otherwise provided by Board Resolution,
------------
Officers' Certificate or supplemental indenture hereto for a particular series,
any day except a Saturday, Sunday or a legal holiday in The City of New York or
Chicago, Illinois on which banking institutions are authorized or required by
law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission.
----------
"Company" means the party named as such above until a successor replaces
-------
it pursuant to this Indenture and thereafter means the successor.
<PAGE>
"Corporate Trust Office" means the office of the Trustee at any place
----------------------
where its principal corporate trust office may be located.
"Default" means any event that is, or with the passage of time or the
-------
giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Securities of any series issuable
----------
or issued in whole or in part in the form of one or more Global Securities, the
person designated as Depository for such series by the Company, which Depository
shall be a clearing agency registered under the Exchange Act; and if at any time
there is more than one such person, "Depository" as used with respect to the
Securities of any series shall mean the Depository with respect to the
Securities of such series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
------------
time to time.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Security" shall mean a Security issued to evidence all or a part
---------------
of any series of Securities that is executed by the Company and authenticated
and delivered by the Trustee to the Depository or pursuant to such Depository's
instructions, all in accordance with this Indenture, which shall be registered
as to principal and interest in the name of such Depository or its nominee.
"Holder" or "Securityholder" means a Person in whose name a Security is
------ --------------
registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from time to
---------
time and shall include the form and terms of particular series of Securities
established as contemplated hereunder.
"Interest," when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after maturity, means interest payable
after maturity.
"Officer" means the Chairman of the Board, any President, any Vice-
-------
President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one of
---------------------
whom must be the Company's principal executive officer, principal financial
officer, or principal accounting officer of the Company.
2
<PAGE>
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides that
--------------------------------
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
"Person" means any individual, corporation, business trust, partnership,
------
joint venture, joint stock company, limited liability company, association,
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"principal" of a Security means the principal amount due on the stated
---------
maturity of the Security, upon redemption of the Security or otherwise due on
the Security, plus the premium, if any, on the Security.
"Securities" means the debentures, notes or other debt instruments of the
----------
Company authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
--------------
time.
"Subsidiary" means any corporation, partnership or limited liability
----------
company of which the Company, or the Company and one or more Subsidiaries, or
any one or more Subsidiaries, directly or indirectly own (i) in the case of a
corporation, voting securities entitling the holders thereof to elect a majority
of the directors, either at all times or so long as there is no default or
contingency which permits the holders of any other class of securities to vote
for the election of one or more directors, (ii) in the case of a partnership, at
least a majority of the general partnership interests and at least a majority of
total outstanding partnership interests or (iii) in the case of a limited
liability company, at least a majority of the membership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
---
and as in effect on the date of execution of this Indenture.
"Trustee" means the party named as such above until a successor becomes
-------
such pursuant to this Indenture and thereafter means or includes each party who
is then a trustee hereunder, and if at any time there is more than one such
party, "Trustee" as used with respect to the Securities of any series means the
Trustee with respect to Securities of that series. If Trustees with respect to
different series of Securities are trustees under this Indenture, nothing herein
shall constitute the Trustees co-trustees of the same trust, and each Trustee
shall be the trustee of a trust separate and apart from any trust administered
by any other Trustee with respect to a different series of Securities.
"Trust Officer" means the Chairman of the Board, the President or any
-------------
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
3
<PAGE>
Section 1.02. Other Definitions.
- ------------ -----------------
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Bankruptcy Law".................. 6.01
"Custodian"....................... 6.01
"Event of Default"................ 6.01
"Legal Holiday"................... 10.07
"Paying Agent".................... 2.03
"Place of Payment"................ 2.01
"redemption price"................ 3.03
"Registrar"....................... 2.03
"U.S. Government Obligations"..... 8.01
</TABLE>
Section 1.03. Incorporation by Reference of Trust Indenture Act.
- ------------ -------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
--------------------
"indenture securityholder" means a Securityholder.
------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the Securities means the Company.
-------
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
- ------------ ---------------------
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural include
the singular; and
4
<PAGE>
(v) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.
- ------------ --------------------------------------------------------
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more series. There shall be established in or pursuant to a Board
Resolution or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to this Article 2);
(c) the date or dates on which the principal of the Securities of
the series is payable;
(d) the rate or rates at which the Securities of the series shall
bear interest, if any, or the manner in which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(e) the place or places where the principal of and any interest on
Securities of the series shall be payable, if other than as provided
herein;
(f) the price or prices at which (if any), the period or periods
within which (if any) and the terms and conditions upon which (if other
than as provided herein) Securities of the series may be redeemed, in
whole or in part, at the option, or as an obligation, of the Company;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period and periods within which
and the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid pursuant to such obligation;
(h) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
5
<PAGE>
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02 hereof;
(j) any addition to or change in the covenants set forth in Article
4 which applies to Securities of the series;
(k) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(l) the Trustee for the series of Securities;
(m) whether the Securities of the series shall be issued in whole
or in part in the form of a Global Security; the terms and conditions, if
any, upon which such Global Security may be exchanged in whole or in part
for certificated Securities, and the Depository for such Global Security;
(n) the provisions, if any, relating to any security provided for
the Securities of the series;
(o) the terms and conditions upon which the Securities of the
series may be converted into other securities of the Company or any other
Person; and
(p) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify
or delete any provision of this Indenture with respect to such series;
provided, however, that no such term may modify or delete any provision
hereof if imposed by the TIA; and provided, further, that any modification
or deletion of the rights, duties or immunities of the Trustee hereunder
shall have been consented to in writing by the Trustee).
All Securities of any series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or in any such indenture supplemental hereto.
The principal of and any interest on the Securities shall be payable at
the office or agency of the Company designated in the form of Security for the
series (each such place herein called the "Place of Payment"); provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time by
or pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto. Prior to the delivery of a Security to the Trustee for
authentication in any form approved by or pursuant to a Board Resolution, the
Company shall deliver to the Trustee the Board Resolution by or pursuant to
which such form of Security has been approved, which Board Resolution shall have
attached thereto a true and correct copy of the form of Security which has been
approved by or pursuant thereto, or, if a Board Resolution authorizes a specific
officer or officers to approve
6
<PAGE>
a form of Security, a certificate of such officer or officers approving the form
of Security attached thereto.
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication.
Section 2.02. Execution and Authentication.
- ------------ ----------------------------
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a
written order of the Company signed by two Officers.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
- ------------ --------------------------
The Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities of that series may be
presented for payment (a "Paying Agent"). The Registrar for a particular series
of Securities shall keep a register of the Securities of that series and of
their transfer and exchange. The Company may appoint one or more co-Registrars
and one or more additional paying agents for each series of Securities. The
term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent, Registrar or co-Registrar without prior notice to any
Securityholder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such. The Company or any of its
Affiliates may act as Paying Agent, Registrar or co-Registrar.
7
<PAGE>
Section 2.04. Paying Agent to Hold Money in Trust.
- ------------ -----------------------------------
Whenever the Company has one or more Paying Agents it will, prior to each
due date of the principal of or interest on, any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent will hold in trust for the benefit of
the Securityholders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and 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. If
the Company or an Affiliate acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Securityholders of the particular
series for which it is acting all money held by it as Paying Agent. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon so doing, the Paying Agent (if other than the Company or an
Affiliate of the Company) shall have no further liability for such money. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
Section 2.05. Securityholder Lists.
- ------------ --------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA (S)
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Securityholders, separately by series, relating to such interest payment date
or request, as the case may be.
Section 2.06. Transfer and Exchange.
- ------------ ---------------------
Where Securities are presented to the Registrar or a co-Registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Securities of like series of other authorized denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Company shall issue and the Trustee shall authenticate Securities at the
Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 9.04).
8
<PAGE>
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a particular series
during a period beginning at the opening of business 15 days before the day of
any selection of Securities of that series for redemption under Section 3.02 and
ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security of that series being redeemed in part.
Section 2.07. Replacement Securities.
- ------------ ----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder of
a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security of like series if the Company's and the Trustee's requirements are met.
The Trustee or the Company may require an indemnity bond to be furnished which
is sufficient in the judgment of both to protect the Company, the Trustee, and
any Agent from any loss which any of them may suffer if a Security is replaced.
The Company may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company and
shall be entitled to all the benefits of the Indenture equally and
proportionately with any and all other Securities of the same series.
Section 2.08. Outstanding Securities.
- ------------ ----------------------
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease to
be outstanding because the Company or an Affiliate holds the Security.
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination.
When requested by the Trustee, the Company will advise the Trustee of such
amount, showing its computations in reasonable detail.
Section 2.09. Treasury Securities.
- ------------ -------------------
9
<PAGE>
In determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, waiver or consent,
Securities owned by the Company or an Affiliate shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
considered.
Section 2.10. Temporary Securities.
- ------------ --------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by two Officers of the Company. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
Holders of temporary Securities shall be entitled to all of the benefits
of this Indenture.
Section 2.11. Cancellation.
- ------------ ------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall destroy
such Securities (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all cancelled Securities shall be
delivered to the Company. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
- ------------ ------------------
If the Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the extent lawful) any
interest payable on the defaulted interest, in any lawful manner. It may elect
to pay such defaulted interest, plus any such interest payable on it, to the
Persons who are Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each such Security.
The Company shall fix any such record date and payment date for such payment.
At least 15 days before any such record date, the Company shall mail to
Securityholders affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.
Section 2.13. Global Securities.
- ------------- -----------------
(a) Terms of Securities. In or pursuant to a Board Resolution or a
-------------------
supplemental indenture hereto, the Company shall establish whether the
Securities of a series shall be issued in whole or in part in the form of one or
more Global Securities and the Depository for such Global Security or
Securities.
10
<PAGE>
(b) Transfer and Exchange. Notwithstanding any provisions to the contrary
---------------------
contained in Section 2.06 and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.06 for Securities registered in the names of
Holders other than the Depository for such Security or its nominee only if (i)
such Depository notifies the Company that it is unwilling or unable to continue
as Depository for such Global Security or if at any time such Depository ceases
to be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depository within 90 days of such
event, (ii) the Company executes and delivers to the Trustee an Officers'
Certificate to the effect that such Global Security shall be so exchangeable,
(iii) an Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing or (iv) there shall exist
any circumstances as may be described in the applicable supplemental indenture
or Board Resolution. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names
as the Depository shall direct in writing in an aggregate principal amount equal
to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.13(b), a Global Security may not be
transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.
(c) Legend. Any Global Security issued hereunder shall bear a legend in
------
substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depository or a
nominee of the Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository or its nominee only
in the limited circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such a successor Depository."
(d) Acts of Holders. The Depository, as a Holder, may appoint agents and
---------------
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
(e) Payments. Notwithstanding the other provision of this Indenture,
--------
unless otherwise specified as contemplated by Section 2.1, payment of the
principal of and interest, if any, on any Global Security shall be made to the
Holder thereof.
(f) Consents, Declaration and Directions. Except as provided in Section
------------------------------------
2.13(e), the Company, the Trustee and any Agent shall treat a Person as the
Holder of such principal amount of outstanding Securities of such series
represented by a Global Security as shall be specified in a written statement of
the Depository with respect to such Global Security, for
11
<PAGE>
purposes of obtaining any consents, declarations, waivers or directions required
to be given by the Holders pursuant to this Indenture.
Section 2.14. Special Record Dates.
- ------------- --------------------
(a) The Company may, but shall not be obligated to, set a record date for
the purpose of determining the identity of Holders entitled to consent to any
supplement, amendment or waiver permitted by this Indenture. If a record date
is fixed, the Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to consent to such supplement,
amendment or waiver or revoke any consent previously given, whether or not such
Holders remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities of that series required hereunder
for such amendment or waiver to be effective shall have also been given and not
revoked within such 90-day period.
(b) The Trustee may, but shall not be obligated to, fix any day as a
record date for the purpose of determining the Holders of any series of
Securities entitled to join in the giving or making of any notice of Default,
any declaration of acceleration, any request to institute proceedings or any
other similar direction. If a record date is fixed, the Holders of Securities
of that series outstanding on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided, however, that
no such action shall be effective hereunder unless taken on or prior to the date
90 days after such record date.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
- ------------ ------------------
If the Company elects to redeem Securities of any series pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
The Company shall give each notice provided for in this Section in an
Officers' Certificate at least 45 days before the redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), which notice shall
specify the provisions of such Security pursuant to which the Company elects to
redeem such Securities.
If the Company elects to reduce the principal amount of Securities of any
series to be redeemed pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
Section 3.02. Selection of Securities to Be Redeemed.
- ------------ --------------------------------------
12
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If less than all the Securities of any series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, on a pro rata basis or by lot. The Trustee shall make the
selection not more than 75 days and not less than 30 days before the redemption
date from Securities of that series outstanding and not previously called for
redemption. Except as otherwise provided as to any particular series of
Securities, Securities and portions thereof that the Trustee selects shall be in
amounts equal to the minimum authorized denomination for Securities of the
series to be redeemed or any integral multiple thereof. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly in writing of the Securities or portions of Securities to be called for
redemption.
Section 3.03. Notice of Redemption.
- ------------ --------------------
Except as otherwise provided as to any particular series of Securities, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to
the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on
and after the redemption date;
(7) The paragraph of the series of Securities and/or Section of any
supplemental indenture pursuant to which such Securities called for
redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be redeemed.
13
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At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense. The notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice of the Holder of any Security shall
not affect the validity of the proceeding for the redemption of any other
Security.
Section 3.04. Effect of Notice of Redemption.
- ------------ ------------------------------
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the Redemption Price.
Section 3.05. Deposit of Redemption Price.
- ------------ ---------------------------
On or before the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or any Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of all
Securities called for redemption on that date other than Securities which have
previously been delivered by the Company to the Trustee for cancellation. The
Paying Agent shall return to the Company any money not required for that
purpose.
Section 3.06. Securities Redeemed in Part.
- ------------ ---------------------------
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of like series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
- ------------ ---------------------
The Company shall pay or cause to be paid the principal of and interest on
the Securities on the dates and in the manner provided in this Indenture and the
Securities. Principal and interest shall be considered paid on the date due if
the Paying Agent, if other than the Company or an Affiliate, holds as of 10:00
a.m. Eastern Time on that date immediately available funds designated for and
sufficient to pay all principal and interest then due.
To the extent lawful, the Company shall pay interest on overdue principal
and overdue installments of interest at the rate per annum borne by the
applicable series of Securities.
Section 4.02. Maintenance of Office or Agency.
- ------------- --------------------------------
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or
14
<PAGE>
Registrar) where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company 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.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall 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.
The Company hereby designates the office of the Trustee in the Borough of
Manhattan, the City of New York, as one such office or agency of the Company in
accordance with Section 2.03.
Section 4.03. Commission Reports.
- ------------ ------------------
The Company shall deliver to the Trustee within 15 days after the required
filing date 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 by rules and regulations prescribe) which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
provided, however, the Company shall not be required to deliver to the Trustee
any materials for which the Company has sought and received confidential
treatment by the Commission. The Company also shall comply with the other
provisions of TIA (S) 314(a).
Section 4.04. Compliance Certificate.
- ------------ ----------------------
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate stating that in the
course of the performance by the signers of their duties as officers of the
Company, they would normally have knowledge of any failure by the Company to
comply with all conditions, or default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not they have
knowledge of any such failure or default and, if so, specifying each such
failure or default and the nature thereof. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided for in this Indenture. The certificate need not
comply with Section 10.04.
15
<PAGE>
Section 4.05. Taxes.
- ------------ ------
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except (i) as contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been taken in accordance with GAAP or
(ii) where the failure to effect such payment is not adverse in any material
respect to the Holders.
Section 4.06. Stay, Extension and Usury Laws.
- ------------ -------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Corporate Existence.
- ------------ --------------------
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.08. Payments for Consent.
- ------------- ---------------------
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of the Securities for or as an
inducement to any consent, waiver or amendment of any terms or provisions of
this Indenture or of the Securities or any series thereof unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Securities of such series that so consent, waive or agree to amend in the time
frame set forth in solicitation documents relating to such consent, waiver or
agreement.
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<PAGE>
ARTICLE 5
SUCCESSORS
Section 5.01. When Company May Merge, etc.
- ------------ ---------------------------
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized and
existing under the laws of the United States, any state thereof or the
District of Columbia;
(2) the entity or Person formed by or assuming any such
consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes by supplemental indenture
all the obligations of the Company under the Securities and this
Indenture; and
(3) immediately prior to and after the transaction no Default or
Event of Default exists.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
- ------------ ---------------------------------
Upon any consolidation or merger, or any transfer by the Company (other
than by lease) of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein. In the event of any
such transfer, the predecessor Company shall be released and discharged from all
liabilities and obligations in respect of the Securities and the Indenture, and
the predecessor Company may be dissolved, wound up or liquidated at any time
thereafter.
17
<PAGE>
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
- ------------ -----------------
An "Event of Default" occurs with respect to Securities of any particular
series if:
(1) the Company defaults in the payment of interest on any Security
of that series when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities of that
series, occurs and is continuing, or the Company fails to comply with any
of its other agreements in the Securities of that series or in this
Indenture with respect to that series and the Default continues for the
period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability generally to pay its debts
as the same become due;
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company for all or
substantially all of its property; or
(C) orders the liquidation of the Company;
18
<PAGE>
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) above is not an Event of Default with respect
to a particular series of Securities until the Trustee or the Holders of at
least 50% in principal amount of the then outstanding Securities of that series
notify the Company of the Default and the Company does not cure the Default
within 30 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default."
Section 6.02. Acceleration.
- ------------ ------------
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clauses (4) and (5) of Section 6.01)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 50% in principal amount of the then outstanding Securities of that
series by notice to the Company and the Trustee, may declare the unpaid
principal (or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of and any accrued and unpaid
interest on all the Securities of that series to be due and payable on the
Securities of that series. Upon such declaration the principal (or such lesser
amount) and interest shall be due and payable immediately. If an Event of
Default specified in clause (4) or (5) of Section 6.01 occurs, all of such
amount shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder. The Holders of a
majority in principal amount of the then outstanding Securities of that series
by notice to the Trustee may rescind an acceleration of the unpaid principal and
accrued interest on such series and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default with
respect to that series have been cured or waived except nonpayment of principal
(or such lesser amount) or interest that has become due solely because of the
acceleration.
Section 6.03. Other Remedies.
- ------------ --------------
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal or interest on the Securities of that series or to enforce
the performance of any provision of the Securities of that series or this
Indenture.
19
<PAGE>
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
- ------------ -----------------------
Subject to Section 9.02, the Holders of a majority in principal amount of
the then outstanding Securities of any series by notice to the Trustee may waive
an existing Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default in the payment of the
principal (including any mandatory sinking fund or like payment) of or interest
on any Security of that series.
Section 6.05. Control by Majority.
- ------------ -------------------
The Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy with respect to that series available to the Trustee
or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
is unduly prejudicial to the rights of another Holder of Securities of that
series, or that may involve the Trustee in personal liability. Subject to
Section 7.01, the Trustee shall have no duty or obligation to determine whether
any such direction is or may be unduly prejudicial to the rights of such Holder.
The Trustee may take any other action which it deems proper which is not
inconsistent with any such direction.
Section 6.06. Limitation on Suits.
- ------------ -------------------
A Holder of Securities of any series may not pursue a remedy with respect
to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to that series;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities of that series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Securities of that series do not give the
Trustee a direction inconsistent with the request.
20
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No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a preference
or priority over another Holder of Securities of that series.
Section 6.07. Rights of Holders to Receive Payment.
- ------------ ------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest, if any, on
the Security, on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
Section 6.08. Collection Suit by Trustee.
- ------------ --------------------------
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing with respect to Securities of any series, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal (or such portion of the principal as may be
specified as due upon acceleration at that time in the terms of that series of
Securities) and interest, if any, remaining unpaid on the Securities of that
series then outstanding, together with (to the extent lawful) interest on
overdue principal and interest, and such further amount as shall be sufficient
to cover the costs and, to the extent lawful, expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07.
Section 6.09. Trustee May File Proofs of Claim.
- ------------ --------------------------------
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor on the Securities), its creditors or its property and shall be
entitled to and empowered to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same, and any
custodian in any such judicial proceedings is hereby authorized by each Holder
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, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
Section 6.10. Priorities.
- ------------ ----------
If the Trustee collects any money with respect to Securities of any series
pursuant to this Article, it shall pay out the money in the following order:
21
<PAGE>
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07, including payment of all compensation,
expense and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection;
Second: to Securityholders for amounts due and unpaid on the
Securities of such series for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities
of such series for principal and interest, respectively;
and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
Section 6.11. Undertaking for Costs.
- ------------ ---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defense made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the then outstanding Securities of any series.
22
<PAGE>
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
- ------------- -----------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circum stances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee
need perform only those duties that are specifically set forth
in this Indenture or the TIA and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a responsible officer of the Trustee, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives security and
indemnity satisfactory to it against any loss, liability or expense.
23
<PAGE>
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Absent written
instruction from the Company, the Trustee shall not be required to invest any
such money. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
- ------------ -----------------
Subject to TIA Section 315(a) through (d):
(a) The Trustee may conclusively rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers, unless the Trustee's conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice form the Company shall be sufficient if signed by
an Officer of the Company.
(f) Except for (i) a default under Sections 6.01(1) or 6.01(2) hereof, 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 the Company or the Holders of not less than
50% in aggregate principal amount of the Securities then 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.
(g) Before the Trustee acts or refrains from acting, the Trustee may
consult with counsel and the advice or opinion of such counsel as to matters of
law shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion on such counsel.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
Section 7.03. Individual Rights of Trustee.
- ------------ ----------------------------
24
<PAGE>
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to TIA Sections 310(b)
and 311.
Section 7.04. Trustee's Disclaimer.
- ------------ --------------------
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, it shall
not be responsible for the use or application of any money received by any Agent
other than the Trustee, and it shall not be responsible for any statement of the
Company in this Indenture or any other document in connection with the sale of
the Securities, or any statement in the Securities other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
- ------------ ------------------
If a Default or Event of Default with respect to the Securities of any series
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to all Holders of Securities of that series a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any such Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of such
Securityholders.
Section 7.06. Reports by Trustee to Holders.
- ------------ -----------------------------
Within 60 days after each May 15 beginning with May 15, 1999, the Trustee
with respect to any series of Securities shall mail to Holders of Securities of
that series as provided in TIA (S) 313(c) a brief report dated as of such May 15
that complies with TIA (S) 313(a) (if such report is required by TIA (S)
313(a)). The Trustee shall also comply with TIA (S) 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which any of the Securities of any series are listed, as required by TIA (S)
313(d). The Company shall notify the Trustee when the Securities of any series
are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
- ------------ --------------------------
The Company shall pay to the Trustee from time to time such compensation
as shall be agreed upon in writing for its services hereunder. The Company
shall reimburse the Trustee upon written request for all reasonable
disbursements, advances and out-of-pocket expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and out-of-pocket expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for and hold it harmless against
any claim, demand, expense (including, but not limited to attorney fees and
expenses) loss or liability incurred by it, without negligence on its part, in
connection with the administration of this
25
<PAGE>
Indenture and its duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities of any series on all money or property
held or collected by the Trustee in its capacity as Trustee, except money or
property held in trust to pay principal and interest on particular Securities of
any series. Such lien will survive the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
Section 7.08. Replacement of Trustee.
- ------------ ----------------------
A resignation or removal of the Trustee with respect to one or more or all
series of Securities and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities by so notifying the Company in writing. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the
Trustee as to that series by so notifying the Trustee in writing and may appoint
a successor Trustee with the Company's consent. The Company may remove the
Trustee with respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed or
if a vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee for that series. Within one year after the
successor Trustee with respect to any series takes office, the Holders of a
majority in principal amount of the then outstanding Securities of that series
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company. If a successor Trustee as to a particular series does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in principal amount
of the then outstanding Securities of that series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
26
<PAGE>
If the Trustee fails to comply with Section 7.10 with respect to any
series, any Holder of Securities of that series who satisfies the requirements
of TIA Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee for that
series.
A successor Trustee as to any series of Securities shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee (subject to the lien
provided for in Section 7.07), the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture as to that series.
The successor Trustee shall mail a notice of its succession to the Holders of
Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) 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 the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the 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 (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or desirable to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; provided, however, that nothing herein or in such supplemental
Indenture shall constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be trustee of a trust hereunder separate and apart from
any trust hereunder administered by any other such Trustee.
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 the Securities of that or
those series to which the appointment of such successor Trustee relates.
Section 7.09. Successor Trustee by Merger, etc.
- ------------ --------------------------------
If the Trustee as to any series of Securities consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee as to that series.
27
<PAGE>
Section 7.10. Eligibility; Disqualification.
- ------------ -----------------------------
Each series of Securities shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a). The Trustee as to any series of Securities
shall always have a combined capital and surplus of at least $100,000,000 as set
forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
- ------------ -------------------------------------------------
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
- ------------ ------------------------------------
Except as otherwise provided in this Section, the Company may terminate
its obligations under the Securities of any series and this Indenture with
respect to that series, if:
(a) all Securities of that series previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or Securities of that series which are paid pursuant to Section
4.01 or Securities of that series for whose payment money or securities
has theretofore been held in trust and thereafter repaid to the Company,
as provided in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder
with respect to such series; or
(b) (1) the Securities of that series mature within one year or
all of them are to be called for redemption within one year after
arrangements satisfactory to the Trustee for giving the notice of
redemption; and
(2) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the Holders of Securities of that series
for that purpose, money or U.S. Government Obligations, or a combination
thereof, with the U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times as are sufficient, without
consideration of any reinvestment of such interest, to pay principal of
and interest on the Securities of that series to maturity or redemption,
as the case may be, and to pay all other sums payable by it hereunder; or
28
<PAGE>
(c) (1) the Company irrevocably deposits in trust with the Trustee
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
Holders of Securities of that series for that purpose, money or U.S.
Government Obligations, or a combination thereof, with the U.S. Government
Obligations maturing as to principal and interest in such amounts and at
such times as are sufficient, without consideration of any reinvestment of
such interest, to pay principal of and interest on the Securities of that
series to maturity or redemption, as the case may be;
(2) the Company shall have delivered to the Trustee either (A) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Securities of that series will not
recognize income, gain or loss for federal income tax purposes as a result
of the Company's exercise of its option under this clause (c) and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not
been exercised, or (B) an Opinion of Counsel to the same effect as the
ruling described in subclause (A) above accompanied by a ruling to that
effect published by the Internal Revenue Service, unless there has been a
change in the applicable federal income tax law since the date of this
Indenture such that a ruling from the Internal Revenue Service is no
longer required;
(3) the Company has paid or caused to be paid all sums then payable
by the Company hereunder; and
(4) the Company has delivered to the Trustee for that series an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this clause (c) relating to
termination of obligations of the Company have been complied with.
The Company's obligations under Sections 2.03, 2.04, 2.05, 2.06, 2.07,
4.01 (together with its payment obligations under the Securities of that
series), 7.07, 7.08 and 8.03 shall survive until the Securities of that series
are no longer outstanding. Thereafter, and after any discharge pursuant to
clause (a) above, only the Company's obligations in Sections 7.07 and 8.03 shall
survive. If and when a ruling from the Internal Revenue Service or Opinion of
Counsel referred to in clause (c)(2) above is able to be provided specifically
without regard to, and not in reliance upon, the continuance of the Company's
obligations under Section 4.01 and its payment obligations under the Securities
of that series, then the Company's payment obligations under such Section 4.01
and the Securities of that series shall cease upon delivery to the Trustee of
such ruling or Opinion of Counsel and compliance with the other conditions
precedent provided for in clause (c) above relating to the satisfaction and
discharge of this Indenture.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of that series and under this Indenture except for those surviving
obligations specified above.
29
<PAGE>
"U.S. Government Obligations" means direct obligations of the United
---------------------------
States of America for the payment of which the full faith and credit of the
United States of America is pledged. U.S. Government Obligations shall not be
callable at the issuer's option.
Section 8.02. Application of Trust Money.
- ------------ --------------------------
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01 with respect to Securities of any
series. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal and interest on the Securities of that series.
Section 8.03. Repayment to Company.
- ------------ --------------------
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due. After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, provided, however,
that the Trustee or such Paying Agent before being required to make such
repayment may at the expense of the Company mail to each such holder a 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 mailing any unclaimed
balance of such money then remaining will be repaid to the Company.
ARTICLE 9
SUPPLEMENTS, AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
- ------------ --------------------------
The Company and the Trustee as to any series of Securities may supplement
or amend this Indenture or the Securities without notice to or the consent of
any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
30
<PAGE>
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided,
however, that any such addition, change or elimination (A) shall neither
(i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there is no
outstanding Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision;
(6) to make any change that does not adversely affect in any
material respect the interests of the Securityholders of any series; or
(7) to establish additional series of Securities as permitted by
Section 2.01.
Section 9.02. With Consent of Holders.
- ------------ -----------------------
Subject to Section 6.07, the Company and the Trustee as to any series of
Securities may amend this Indenture or the Securities of that series with the
written consent of the Holders of a majority in principal amount of the then
outstanding Securities of each series affected by the amendment, with each such
series voting as a separate class. The Holders of a majority in principal
amount of the then outstanding Securities of any series may also waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to that series or the Securities of that series;
provided, however, that without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the percentage of the principal amount of Securities
whose Holders must consent to an amendment or waiver;
(2) reduce the rate of, or change the time for payment of interest
on, any Security;
(3) reduce the principal of or change the fixed maturity of any
Security, reduce the amount of, or postpone the date fixed for redemption
or alter the conversion provisions;
(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in Section 6.04, 6.07 or 9.02 (this sentence);
or
(6) waive a default in the payment of the principal of, or interest
on, any Security, except to the extent otherwise provided for in Section
6.02.
An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders
31
<PAGE>
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.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Holders of Securities of each series affected thereby a
notice briefly describing the amendment or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
Section 9.03. Revocation and Effect of Consents.
- ------------ ---------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security; provided, however, that any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of a Security if the Trustee
receives the notice of revocation before the date on which the amendment or
waiver becomes effective. An amendment or waiver shall become effective on
receipt by the Trustee of consents from the Holders of the requisite percentage
principal amount of the outstanding Securities of any series, and thereafter
shall bind every Holder of Securities of that series.
Section 9.04. Notation on or Exchange of Securities.
- ------------ -------------------------------------
If an amendment or waiver changes the terms of a Security: (a) the
Trustee may require the Holder of the Security to deliver it to the Trustee, the
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Security thereafter authenticated; or (b) if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.05. Trustee to Sign Amendments, etc.
- ------------ --------------------------------
The Trustee shall receive an Opinion of Counsel stating that the execution
of any amendment or waiver proposed pursuant to this Article is authorized or
permitted by this Indenture. Subject to the preceding sentence, the Trustee
shall sign such amendment or waiver if the same does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties, liabilities or immunities under
this Indenture or otherwise.
32
<PAGE>
ARTICLE 10
MISCELLANEOUS
Section 10.01. Indenture Subject to Trust Indenture Act.
- ------------- ----------------------------------------
This Indenture is subject to the provisions of the TIA which are required
to be part of this Indenture, and shall, to the extent applicable, be governed
by such provisions.
Section 10.02. Notices.
- ------------- -------
Any notice or communication is duly given if in writing and delivered in
person or sent by first-class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day delivery,
addressed as follows:
If to the Company:
Thiokol Corporation
2475 Washington Boulevard
Ogden, Utah 84401
Attention: General Counsel
Fax: 801-629-2422
Phone: 801-629-2270
If to the Trustee:
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
Attention: Dan Donovan
Fax: 312-461-3525
Phone: 312-461-2908
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Securityholder shall be mailed by first-
class mail to his address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Securityholder or any defect in it shall
not affect its sufficiency with respect to other Securityholders. If the
Company mails a notice or communication to Securityholders, it shall mail a copy
to the Trustee at the same time.
33
<PAGE>
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
Section 10.03. Communication By Holders With Other Holders.
- ------------- --------------------------------------------
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
- ------------- --------------------------------------------------
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
- ------------- ---------------------------------------------
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate provided for
in Section 4.03) shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
officer's certificate or certificates of public officials.
34
<PAGE>
Section 10.06. Rules by Trustee and Agents.
- -------------- ---------------------------
The Trustee as to Securities of any series may make reasonable rules for
action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable rules
and set reasonable requirements for their functions.
Section 10.07. Legal Holidays.
- ------------- --------------
Unless otherwise provided in or pursuant to a Board Resolution or
supplemental indenture for a particular series of Securities, a "Legal Holiday"
is any day that is not a Business Day. If a payment date is a Legal Holiday at
a place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.08. No Recourse Against Others.
- ------------- --------------------------
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
Section 10.09. Counterparts.
- ------------- ------------
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 10.10. Governing Law.
- ------------- -------------
The internal laws of the State of New York shall govern this Indenture and
the Securities, without regard to the conflict of laws provisions thereof.
Section 10.11. Severability.
- ------------- ------------
In case any provision in this Indenture or in the Securities 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 10.12. Effect of Headings, Table of Contents, etc.
- ------------- -------------------------------------------
The Article and Section headings herein and the table of contents are for
convenience only and shall not affect the construction hereof.
35
<PAGE>
Section 10.13. Successors and Assigns.
- ------------- ----------------------
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successor.
Section 10.14. No Interpretation of Other Agreements.
- ------------- -------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
36
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture as of
the date first above written.
THIOKOL CORPORATION
By /s/ Nicholas Iuanow
---------------------------
Name: Nicholas Iuanow
Title: Treasurer
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By /s/ J. Bartolini
---------------------------
Name: J. Bartolini
Title: Vice President
S-1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<C> <S> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE........................ 1
Section 1.01. Certain Definitions............................................... 1
Section 1.02. Other Definitions................................................. 4
Section 1.03. Incorporation by Reference of Trust Indenture Act................. 4
Section 1.04. Rules of Construction............................................. 4
ARTICLE 2 THE SECURITIES.................................................... 5
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.......... 5
Section 2.02. Execution and Authentication...................................... 7
Section 2.03. Registrar and Paying Agent........................................ 7
Section 2.04. Paying Agent to Hold Money in Trust............................... 8
Section 2.05. Securityholder Lists.............................................. 8
Section 2.06. Transfer and Exchange............................................. 8
Section 2.07. Replacement Securities............................................ 9
Section 2.08. Outstanding Securities............................................ 9
Section 2.09. Treasury Securities............................................... 9
Section 2.10. Temporary Securities.............................................. 10
Section 2.11. Cancellation...................................................... 10
Section 2.12. Defaulted Interest................................................ 10
Section 2.13. Global Securities................................................. 10
Section 2.14. Special Record Dates.............................................. 12
ARTICLE 3 REDEMPTION........................................................ 12
Section 3.01. Notices to Trustee................................................ 12
Section 3.02. Selection of Securities to Be Redeemed............................ 12
Section 3.03. Notice of Redemption.............................................. 13
Section 3.04. Effect of Notice of Redemption.................................... 14
Section 3.05. Deposit of Redemption Price....................................... 14
Section 3.06. Securities Redeemed in Part....................................... 14
ARTICLE 4 COVENANTS......................................................... 14
Section 4.01. Payment of Securities............................................. 14
Section 4.02. Maintenance of Office or Agency................................... 14
Section 4.03. Commission Reports................................................ 15
Section 4.04. Compliance Certificate............................................ 15
</TABLE>
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Section 4.05. Taxes............................................................. 16
Section 4.06. Stay, Extension and Usury Laws.................................... 16
Section 4.07. Corporate Existence............................................... 16
Section 4.08. Payments for Consent.............................................. 16
ARTICLE 5 SUCCESSORS........................................................ 17
Section 5.01. When Company May Merge, etc....................................... 17
Section 5.02. Successor Corporation Substituted................................. 17
ARTICLE 6 DEFAULTS AND REMEDIES............................................. 18
Section 6.01. Events of Default................................................. 18
Section 6.02. Acceleration...................................................... 19
Section 6.03. Other Remedies.................................................... 19
Section 6.04. Waiver of Past Defaults........................................... 20
Section 6.05. Control by Majority............................................... 20
Section 6.06. Limitation on Suits............................................... 20
Section 6.07. Rights of Holders to Receive Payment.............................. 21
Section 6.08. Collection Suit by Trustee........................................ 21
Section 6.09. Trustee May File Proofs of Claim.................................. 21
Section 6.10. Priorities........................................................ 21
Section 6.11. Undertaking for Costs............................................. 22
ARTICLE 7 TRUSTEE........................................................... 23
Section 7.02. Rights of Trustee................................................. 24
Section 7.03. Individual Rights of Trustee...................................... 24
Section 7.04. Trustee's Disclaimer.............................................. 25
Section 7.05. Notice of Defaults................................................ 25
Section 7.06. Reports by Trustee to Holders..................................... 25
Section 7.07. Compensation and Indemnity........................................ 25
Section 7.08. Replacement of Trustee............................................ 26
Section 7.09. Successor Trustee by Merger, etc.................................. 27
Section 7.10. Eligibility; Disqualification..................................... 28
Section 7.11. Preferential Collection of Claims Against Company................. 28
ARTICLE 8 DISCHARGE OF INDENTURE............................................ 28
Section 8.01. Termination of Company's Obligations.............................. 28
Section 8.02. Application of Trust Money........................................ 30
Section 8.03. Repayment to Company.............................................. 30
ARTICLE 9 SUPPLEMENTS, AMENDMENTS AND WAIVERS............................... 30
Section 9.01. Without Consent of Holders........................................ 30
</TABLE>
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Section 9.02. With Consent of Holders........................................... 31
Section 9.03. Revocation and Effect of Consents................................. 32
Section 9.04. Notation on or Exchange of Securities............................. 32
Section 9.05. Trustee to Sign Amendments, etc................................... 32
ARTICLE 10 MISCELLANEOUS..................................................... 33
Section 10.01. Indenture Subject to Trust Indenture Act.......................... 33
Section 10.02. Notices........................................................... 33
Section 10.03. Communication By Holders With Other Holders....................... 34
Section 10.04. Certificate and Opinion as to Conditions Precedent................ 34
Section 10.05. Statements Required in Certificate or Opinion..................... 34
Section 10.06. Rules by Trustee and Agents....................................... 35
Section 10.07. Legal Holidays.................................................... 35
Section 10.08. No Recourse Against Others........................................ 35
Section 10.09. Counterparts...................................................... 35
Section 10.10. Governing Law..................................................... 35
Section 10.11. Severability...................................................... 35
Section 10.12. Effect of Headings, Table of Contents, etc........................ 35
Section 10.13. Successors and Assigns............................................ 36
Section 10.14. No Interpretation of Other Agreements............................. 36
</TABLE>
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THIOKOL CORPORATION
OFFICERS' CERTIFICATE PURSUANT TO
SECTIONS 2.01 AND 10.04 OF THE INDENTURE
Nicholas J. Iuanow and Michael R. Ayers, do hereby certify that they
are the Vice President and Treasurer, and Vice President and Controller,
respectively, of Thiokol Corporation, a Delaware corporation (the "Company"),
and do further certify, pursuant to resolutions of the Executive Committee of
the Board of Directors of the Company adopted on February 17, 1998 (the
"Resolutions"), and in accordance with the Indenture (the "Indenture") dated as
of March 3, 1998 between the Company and Harris Trust and Savings Bank, as
trustee (the "Trustee"), as follows:
1. Attached hereto as Annex A is a true and correct copy of a
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specimen note (the "Form of Note") representing the Company's 6 5/8% Senior
Notes due 2008 (the "Notes").
2. The Form of Note sets forth certain of the terms required to be
set forth in this certificate pursuant to Section 2.01 of the Indenture,
and said terms are incorporated herein by reference. The Notes were issued
at the initial public offering price of 99.423% of principal amount.
3. In addition to the covenants set forth in Article 4 of the
Indenture, the Notes shall include the following additional covenants, and
such additional covenants shall be subject to covenant defeasance pursuant
to Section 8.01 of the Indenture:
"Section 4.09 Limitation on Liens.
-------------------
The Company will not, and will not permit any Restricted Subsidiary
to, incur, assume or guarantee any Debt secured by a Lien on any Principal
Property or on any Debt or shares of capital stock of, or other ownership
interests in, any Restricted Subsidiary ("Secured Debt") (whether such
Principal Property, Debt, capital stock or ownership interests are owned or
outstanding at the date of the Indenture or thereafter acquired or issued,
as the case may be) if, immediately after giving effect thereto, the sum,
without duplication, of (a) the aggregate principal amount of all Secured
Debt (other than Excluded Debt) and (b) the aggregate amount of all
Attributable Debt in respect of Sale and Leaseback Transactions (other than
Excluded Transactions) would exceed 15% of the Company's Consolidated Net
Tangible Assets, unless the Company provides, concurrently with or prior to
the incurrence, assumption or guarantee of such Secured Debt, that the
Notes shall be secured equally and ratably with (or, at the option of the
Company, prior to) such Secured Debt.
The provisions described in the foregoing paragraph shall not apply to
Debt secured by the following Liens (``Excluded Debt"):
(i) Liens existing as of the date of the Indenture;
<PAGE>
(ii) Liens on any Principal Property, Debt, shares of capital stock or
other ownership interests existing at the time of acquisition thereof
(whether such acquisition is direct or by merger, acquisition of stock or
assets or otherwise) by the Company or any of its Subsidiaries, provided
such Liens were not created in contemplation of or in connection with such
acquisition;
(iii) Liens upon or with respect to any Principal Property acquired,
constructed or improved by the Company or any of its Subsidiaries after the
date of the Indenture which (A) are created, incurred or assumed
contemporaneously with, or within 12 months after, the latest to occur of
the acquisition (whether by merger, acquisition of stock or assets or
otherwise), or the completion of construction or improvement, or the
commencement of commercial operation, of such Principal Property, and (B)
secure or provide for the payment of any part of the purchase price of such
Principal Property or the cost of such construction or improvement;
provided, however, that in the case of any such construction or
improvement, the Lien shall relate only to Debt incurred to finance such
construction or improvement;
(iv) Liens securing Debt owing by any Subsidiary to the Company or to
any other Subsidiary;
(v) Liens for taxes not yet due or which are being contested by the
Company in good faith;
(vi) Liens securing reimbursement obligations with respect to letters
of credit;
(vii) Liens on receivables, inventory, and patents, trademarks, trade
names and other intangibles, securing Debt;
(viii) Liens encumbering deposits securing Debt under Hedging
Obligations;
(ix) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Company or any of its Subsidiaries in the ordinary course of business;
(x) Liens created in substitution of or as replacements for any Liens
permitted by the preceding clauses (i) through (ix), provided that, based
on a good faith determination of an Officer, the Principal Property
encumbered under any such substitute or replacement Lien is substantially
similar in nature and value to the Principal Property encumbered by the
Lien which is being replaced; and
(xi) Liens for the sole purpose of extending, renewing or replacing in
whole or in part the Debt secured thereby referred to in the foregoing
clauses (i) to (x), inclusive, or in this clause (xi); provided, however,
that the Debt excluded pursuant to this clause (xi) shall be excluded only
in an amount not to exceed the principal amount of Debt so secured at the
time of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or part of the Principal
Property, Debt, shares of capital stock or other ownership interests, as
the case may be, subject to the
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Lien so extended, renewed or replaced (plus improvements on or to such
Principal Property).
Section 4.10 Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into, assume, guarantee or otherwise become liable
with respect to any Sale and Leaseback Transaction involving any Principal
Property (whether such Principal Property is owned at the date of the
Indenture or thereafter acquired), if, immediately after giving effect
thereto, the sum, without duplication, of (a) the aggregate principal
amount of all Secured Debt (other than Excluded Debt) and (b) the aggregate
amount of all Attributable Debt in respect of Sale and Leaseback
Transactions (other than Excluded Transactions) would exceed 15% of the
Company's Consolidated Net Tangible Assets. The provisions set forth in the
immediately preceding sentence shall not apply to any Sale and Leaseback
Transaction (an "Excluded Transaction") if (w) within 270 days from the
effective date of such Sale and Leaseback Transaction, the Company or such
Subsidiary applies an amount not less than the greater of (i) the net
proceeds of the sale of the Principal Property sold pursuant to such Sale
and Leaseback Transaction or (ii) the fair value (as determined by the
Company) of such Principal Property to retire (other than pursuant to any
mandatory prepayment or retirement) Funded Debt of the Company or any
Subsidiary (other than Funded Debt held by the Company or any Subsidiary of
the Company), including, for this purpose, any currently maturing portion
of such Funded Debt, or to purchase other property having a fair value (as
determined by the Company) at least equal to the fair value (as determined
by the Company) of the Principal Property sold in such Sale and Leaseback
Transaction, (x) such Sale and Leaseback Transaction occurs within 180 days
after the latest to occur of the date of acquisition by the Company or such
Subsidiary, completion of construction or commencement of commercial
operations of the Principal Property sold pursuant to such transaction, (y)
such Sale and Leaseback Transaction (A) is between the Company and any
Subsidiary or between any Subsidiaries, or (B) is entered into prior to the
date of the Indenture or (z) at the time such Sale and Leaseback
Transaction is entered into, the term of the related lease to the Company
or such Subsidiary of the Principal Property sold pursuant to such
transaction is three years or less."
4. In addition to the Events of Default set forth in Section 6.01 of
the Indenture, the Notes shall include the following additional Event of
Default:
"6.01(6) acceleration of $100,000,000 or more, individually or in the
aggregate, in principal amount of Indebtedness of the Company under the
terms of the instrument under which such Indebtedness is issued or secured,
except as a result of compliance with applicable laws, orders or decrees,
if such Indebtedness shall not have been discharged or such acceleration is
not annulled within 10 days after written notice of such acceleration."
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<PAGE>
5. In addition to the definitions set forth in Article 1 of the
Indenture, the Notes shall include the following additional definitions,
which, in the event of a conflict with the definition of terms in the
Indenture, shall control:
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of the time of determination, the present value (discounted at
the rate per annum equal to the rate of interest implicit in the lease
involved in such Sale and Leaseback Transaction, as determined in good
faith by the Company) of the obligation of the lessee thereunder for rental
payments (excluding, however, any amounts required to be paid by such
lessee, whether or not designated as rent or additional rent, on account of
maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales or similar contingent
amounts) during the remaining term of such lease (including any period for
which such lease has been extended or may, at the option of the lessor, be
extended). In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such rental payments shall also include the
amount of such penalty, but no rental payments shall be considered as
required to be paid under such lease subsequent to the first date upon
which it may be so terminated.
"Consolidated Net Tangible Assets" means, with respect to the Company
as at any date, the total assets of the Company and its consolidated
Subsidiaries determined in accordance with GAAP as they appear on the most
recently prepared consolidated balance sheet of the Company as of the end
of a fiscal quarter, less (i) all liabilities shown on such consolidated
balance sheet that are classified and accounted for as current liabilities
or that otherwise would be considered current liabilities under GAAP; and
(ii) all assets shown on such consolidated balance sheet that are
classified and accounted for as intangible assets or that otherwise would
be considered intangible assets under GAAP, including, without limitation,
franchises, patents and patent applications, trademarks, brand names and
goodwill.
"Debt" means indebtedness for borrowed money or evidenced by bonds,
notes, debentures or other similar instruments.
"Funded Debt" means Debt of the Company or any of its Subsidiaries
which, under GAAP, would appear as indebtedness on the most recent
consolidated balance sheet of the Company, which matures by its terms more
than 12 months from the date of such consolidated balance sheet or which
matures by its terms in less than 12 months but by its terms is renewable
or extendible beyond 12 months from the date of such consolidated balance
sheet at the option of the borrower.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of application thereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) currency exchange, interest rate or
commodity swap agreements, currency exchange, interest rate or commodity
cap agreements and currency exchange,
4
<PAGE>
interest rate or commodity collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in
currency exchange, interest rates or commodity prices.
"Indebtedness" means indebtedness for borrowed money or evidenced by
bonds, notes, debentures or other similar instruments.
"Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of
any nature whatsoever.
"Principal Property" means any manufacturing, processing,
distribution, research, research and development, warehousing or principal
administration facility (including, without limitation, land, fixtures and
equipment) owned or leased by the Company or any Subsidiary (including any
of the foregoing acquired or leased after the date of the Indenture) and
located within the United States of America, other than any of the
foregoing which the Board of Directors of the Company by Board Resolution
and in good faith declares, together with all other manufacturing,
processing, distribution, research, research and development, warehousing
and principal administration facilities (including, without limitation,
land, fixtures and equipment) previously so declared, are not of material
importance to the business conducted by the Company and its Subsidiaries
taken as an entirety.
"Restricted Subsidiary" means any Subsidiary of the Company which (i)
owns or leases a Principal Property and (ii) (A) substantially all of the
property of which is located, or substantially all of the business of which
is carried on, within the United States of America or (B) which is
incorporated or organized under the laws of any state of the United States
of America or the District of Columbia.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party,
providing for the leasing to the Company or a Subsidiary of any Principal
Property, whether owned at the date of the Indenture or thereafter
acquired, which has been or is to be sold or transferred by the Company or
such Subsidiary to such Person or to any other Person to whom funds have
been or are to be advanced by such Person on the security of such Principal
Property.
6. Each of the undersigned is authorized to approve the form, terms
and conditions of the Notes pursuant to the Resolutions.
7. Attached hereto as Annex B is a true and correct copy of the
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Resolutions.
8. The Notes shall be issued as a Global Security (subject to
exchange for definitive certificated Notes under the circumstances provided
in the Indenture) and The Depository Trust Company shall be the Depository
for the Notes.
5
<PAGE>
9. Attached hereto as Annex C are true and correct copies of the
-------
letter addressed to the Trustee entitling the Trustee to rely on the
Opinion of Counsel attached thereto, which Opinion relates to the Notes and
complies with Section 10.04(b) of the Indenture.
10. Each of the undersigned has reviewed the provisions of the
Indenture, including the covenants and conditions precedent pertaining to
the issuance of the Notes.
11. In connection with this certificate each of the undersigned has
examined documents, corporate records and certificates and has spoken with
other officers of the Company.
12. Each of the undersigned has made such examination and
investigation as is necessary to enable him to express an informed opinion
as to whether or not the covenants and conditions precedent of the
Indenture pertaining to the issuance of the Notes have been satisfied.
13. In our opinion all of the covenants and conditions precedent
provided for in the Indenture for the issuance of the Notes have been
satisfied.
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Indenture or the Notes, as the case
may be.
6
<PAGE>
IN WITNESS WHEREOF, each of the undersigned officers has executed this
certificate this 3rd day of March 1998.
/s/ Nicholas J. Iuanow
-----------------------
Name: Nicholas J. Iuanow
Title: Vice President and
Treasurer
/s/ Michael R. Ayers
-----------------------
Name: Michael R. Ayers
Title: Vice President and
Controller
7
<PAGE>
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), OR A NOMINEE OF THE
DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH A
SUCCESSOR DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, 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 THE DEPOSITORY (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), 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.
THIOKOL CORPORATION
6 5/8% Senior Notes
Due 2008
No. R-1 $150,000,000
CUSIP No. 884103 AA 0
THIOKOL CORPORATION, a Delaware corporation (the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received promises to pay to
CEDE & CO. , or registered assigns,
the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS
on March 1, 2008 and to pay interest thereon from March 1, 1998, or from the
most recent date to which interest has been paid or duly provided for, payable
on March 1 and September 1 of each year, commencing September 1, 1998, at the
rate of 6 5/8% per annum, until the principal hereof is paid or made available
for payment, and (to the extent that the payment of such interest is permitted
by law) to pay interest at the rate per annum borne by this Security on any
overdue principal and on any overdue installment of interest
1
<PAGE>
until paid. The interest so payable, and punctually paid or duly provided for,
on any interest payment date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more predecessor Securities) is
registered at the close of business on the regular record date for such
interest, which shall be the February 15 or August 15 (whether or not a Business
Day), as the case may be, immediately prior to such interest payment date. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such regular record date and may either be paid
to the Person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company, notice
whereof shall be given to the Holders not less than 15 days prior to such
special record date, or be paid at any time in any other lawful manner. Interest
on the Securities shall be computed on the basis of a 360-day year of twelve 30-
day months.
Principal of and interest on the Securities will be payable 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, the transfer of the
Securities will be registrable, the Securities may be presented for exchange,
and notices and demands to or upon the Company in respect of this Security and
the Indenture may be served, at the office or agency of the Company maintained
for such purpose (which initially will be the office of the Trustee located at
88 Pine Street, New York, New York 10005, Attention: Corporate Trust Services);
provided that the Company will at all times maintain an office or agency for
such purposes in the Borough of Manhattan, the City of New York; and provided,
further, that, except as provided in the next sentence, payment of interest may,
at the option of the Company, be made by check mailed to the address of the
Person entitled thereto. If this Security is a Global Security, the interest
payable on this Security will be paid to Cede & Co., the nominee of the
Depository, or its registered assigns as the registered owner of this Security,
by wire transfer of immediately available funds on each of the applicable
interest payment dates.
Reference is hereby made to the further provisions of this Security
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Date: March 3, 1998
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the 6 5/8% Senior Notes due
March 1, 2008 described in the
within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK THIOKOL CORPORATION
BY BY BY
AUTHORIZED SIGNATORY SENIOR VICE PRESIDENT VICE PRESIDENT
AND GENERAL COUNSEL AND TREASURER
3
<PAGE>
THIOKOL CORPORATION
6 5/8% Senior Notes Due 2008
1. General.
This Security is one of a duly authorized series of securities of the
Company issued and to be issued under an Indenture, dated as of March 3, 1998,
as amended, modified or supplemented from time to time (the "Indenture"),
between the Company and Harris Trust and Savings Bank, as trustee (the
"Trustee," which term includes any successor trustee under the Indenture), 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
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $150,000,000 (herein called the "Securities").
All terms used but not defined in this Security shall have the meanings assigned
to them in the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on this Security at
the times, places and rate, and in the coin or currency, herein prescribed.
2. Indenture.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by the Officers' Certificate dated March 3, 1998
delivered pursuant thereto and the TIA. The Securities are subject to all such
terms, and the Securityholders are referred to the Indenture and the TIA for a
statement of them.
3. Sinking Fund.
The Securities are not subject to any sinking fund, and the Securities are
not subject to redemption or repurchase by the Company at the option of the
Holders.
4. Redemption.
The Securities are redeemable, in whole or from time to time in part, at
the option of the Company on any date (a "Redemption Date"), at a redemption
price equal to the greater of (i) 100% of the principal amount of the Securities
to be redeemed and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to
such Redemption Date) discounted to such Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 20 basis points, plus, in either case, accrued and unpaid interest on
the principal amount being redeemed to such Redemption Date; provided that
installments of interest on Securities which are due and payable on an interest
payment date falling on or prior to the relevant Redemption Date shall be
payable to the Holders of such Securities, or one or more predecessor
Securities, registered as such at the close of business on the relevant record
date according to the terms hereof and the provisions of the Indenture.
"Treasury Rate" means, with respect to any Redemption Date for the
Securities, (i) the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Comparable Treasury Issue (if no
4
<PAGE>
maturity is within three months before or after the maturity date of the
Securities, yields for the two published maturities most closely corresponding
to the Comparable Treasury Issue shall be determined and the Treasury Rate shall
be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date. The
Treasury Rate shall be calculated on the third Business Day preceding the
Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities.
"Independent Investment Banker" means Morgan Stanley & Co. Incorporated or,
if such firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Trustee after consultation with the Company.
"Comparable Treasury Price" means with respect to any Redemption Date for
the Securities (i) the average of five Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
``Reference Treasury Dealer" means each of Morgan Stanley & Co.
Incorporated, Credit Suisse First Boston Corporation, ABN AMRO Incorporated, BT
Alex. Brown Incorporated and First Chicago Capital Markets, Inc. and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company will substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
Notice of any redemption by the Company will be mailed at least 30 days but
not more than 60 days before any Redemption Date to each Holder of Securities to
be redeemed. If less than all the Securities are to be redeemed at the option of
the Company, the Trustee shall select, pursuant to Section 3.02 of the
Indenture, the Securities to be redeemed in whole or in part.
Unless the Company defaults in payment of the redemption price, on and
after any Redemption Date interest will cease to accrue on the Securities or
portions thereof called for redemption.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
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As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer, or the exchange for an equal principal amount,
of this Security is registrable with the Registrar upon surrender of this
Security for registration of transfer at the office or agency of the Registrar.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may, subject to certain exceptions, require payment of
a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner thereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
7. Unclaimed Money.
The Trustee and any Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due. After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, provided, however,
that the Trustee or Paying Agent before being required to make such repayment
may at the expense of the Company mail to each such Securityholder a 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 mailing any unclaimed
balance of such money then remaining will be repaid to the Company.
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
To the extent permitted by, and as provided and subject to the limitations
in, the Indenture, the Company and the Trustee may, with the written consent of
the Holders of a majority in principal amount of the then outstanding
Securities, amend the Indenture or the Securities to add any provision or change
in any manner or eliminate any provision of the Indenture or any supplemental
indenture or modify in any manner the rights of the Holders.
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10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and certain of
its Subsidiaries' ability to create or incur certain Liens and to engage in
certain Sale and Leaseback Transactions and on the Company's ability to merge
with or into or transfer all or substantially all of its assets to another
Person. These limitations are subject to a number of important qualifications
and exceptions and reference is made to the Indenture for a description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of the
Securities may be declared (or, in certain cases, shall ipso facto become) due
and payable in the manner and with the effect provided in the Indenture.
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to pursue a remedy with respect to the
Indenture or the Securities, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities and unless also the Holders of at least 25% in principal amount of
the Securities at the time outstanding shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceedings as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of Securities at the time outstanding a direction
inconsistent with such request, and shall have failed to comply with the
request, within 60 days. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of the
principal hereof or any interest hereon on or after the respective due dates
expressed herein.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may deal with the Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee.
14. No Recourse Against Others.
A past, present or future director, officer, employee, stockholder or
incorporator as such, of the Company or any successor corporation shall not have
any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. Governing Law.
The internal laws of the State of New York shall govern the Indenture and
the Securities without regard to conflict of laws provisions thereof.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common UNIF GIFT MIN ACT-_____ Custodian ______
TEN ENT-as tenants by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act__________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________
| |
________________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
________________________________________________________________________________
this Security and all rights thereunder hereby irrevocably constituting and
appointing __________________________________________________________, Attorney,
to transfer this Security on the books of the Company, with full power of
substitution in the premises.
Dated:_____________________ ____________________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Security in every
particular, without alteration or
enlargement or any change whatsoever.
8
