<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 1998
REGISTRATION NO. 333-57301
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
GEORGIA GULF CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 58-1563799
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
400 PERIMETER CENTER TERRACE
SUITE 595
ATLANTA, GEORGIA 30346
(770) 395-4500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
EDWARD A. SCHMITT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GEORGIA GULF CORPORATION
400 PERIMETER CENTER TERRACE
SUITE 595
ATLANTA, GEORGIA 30346
(770) 395-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
Copies to:
Lisa A. Stater, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective, as determined by
market conditions and other factors.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 6, 1998
$200,000,000
GEORGIA GULF CORPORATION
DEBT SECURITIES
----------------
Georgia Gulf Corporation, a Delaware corporation ("Georgia Gulf" or the
"Company"), may from time to time offer its debt securities, consisting of
notes, debentures or other evidences of indebtedness ("Securities"), in one or
more series to be determined at the time of the offering, at an aggregate
initial public offering price not to exceed $200,000,000 or, if applicable, the
equivalent thereof in other currencies. The Securities may be offered in
separate series in amounts, at prices and on terms to be determined at the time
of sale and to be set forth in supplements to this Prospectus. The Securities
may be sold either through underwriters, dealers or agents or directly by the
Company. See "Plan of Distribution."
The terms of the Securities, including, where applicable, the specific
designation, aggregate principal amount, denominations (which may be in United
States dollars, in any other currency, units of two or more currencies or in a
composite currency), maturity, rate (which may be fixed or variable) and time of
payment of interest, if any, terms for redemption at the option of the Company
or the holder, terms for sinking or purchase fund payments, the initial public
offering price, the names of any underwriters, dealers or agents, the principal
amounts, if any, to be purchased by underwriters or agents and the compensation,
if any, of such underwriters, dealers or agents and the other terms in
connection with the offering and sale of the Securities in respect of which this
Prospectus is being delivered, are set forth in the accompanying Prospectus
Supplement ("Prospectus Supplement").
Any statement contained in this Prospectus will be deemed modified or
superceded by any inconsistent statement contained in the accompanying
Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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The date of this Prospectus is July , 1998.
<PAGE>
AVAILABLE INFORMATION
Georgia Gulf is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the Public
Reference Room of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549; and at the Commission's regional offices at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and 65 Park Place, Room
1288, New York, New York 10017. Copies of such material may be obtained from the
Public Reference Section of the Commission, Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a Web site
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of that Web site is http://www.sec.gov. The Company's common stock is listed on
the New York Stock Exchange, Inc. Such reports, proxy statements and other
information may also be inspected at the office of such exchange, 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement"), of which this Prospectus forms a part, with
respect to the Securities being offered hereby pursuant to the Securities Act of
1933, as amended (the "Securities Act"). As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information,
exhibits and undertakings contained in the Registration Statement. Such
additional information can be inspected at the principal office of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of the
Registration Statement can be obtained from the Commission at prescribed rates
by writing to the Commission at such address. Any statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of any such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 and the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998 filed by the Company with the Commission are incorporated by
reference in this Prospectus. All documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the Securities hereby shall be deemed to be
incorporated herein by reference and shall be a part hereof from the date of the
filing of such documents. Any statements contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner to whom a Prospectus is delivered, upon written or oral request
of such person, a copy of the documents incorporated by reference herein, other
than exhibits to such documents not specifically incorporated by reference. Such
requests should be directed to: Georgia Gulf Corporation, 400 Perimeter Center
Terrace, Suite 595, Atlanta, Georgia 30346, Attention: Nancy R. O'Donnell
(telephone number (770) 395-4587).
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THE COMPANY
Georgia Gulf is a major manufacturer and worldwide marketer of quality
chemical and plastic products. The Company manufactures products through two
highly integrated lines categorized into electrochemicals and aromatic
chemicals, and also a third product line, methanol, a natural gas chemical. The
Company's electrochemical products include chlorine, caustic soda, sodium
chlorate, vinyl chloride monomer, and polyvinyl chloride ("PVC") resins and
compounds; the Company's aromatic chemical products include cumene, phenol,
acetone and alpha-methylstyrene.
The Company's products are generally intermediate chemicals that are sold
for further processing into a wide variety of end-use applications. Some of the
more significant end-use markets include plastic piping, wire coatings, siding
and window frames made from PVC resins and compounds; bonding agents for wood
products and high quality plastics made from phenol; acrylic sheeting for
automotive and architectural products made from acetone; and MTBE, a gasoline
additive produced from methanol. The following percentages of sales were made in
1997 to manufacturers in the following industries: 30% housing and construction,
25% plastics and fibers, 21% solvents and chemicals, 14% consumer products, 3%
pulp and paper and 7% miscellaneous.
The principal executive offices of the Company are located at 400 Perimeter
Center Terrace, Suite 595, Atlanta, Georgia 30346. The telephone number of the
Company at such address is
(770) 395-4500.
RECENT DEVELOPMENTS
On May 12, 1998, the Company acquired North American Plastics, Inc. ("North
American Plastics"), a privately-held manufacturer of flexible PVC compounds
with a production capacity of 190 million pounds. North American Plastics has
two manufacturing locations in Mississippi, with 96 total employees. Its vinyl
compounds are used in a wide range of products, from wire and cable for
construction, automobiles and appliances, to a variety of consumer and
industrial products. North American Plastics' revenues for 1997 were
approximately $90 million. This acquisition enables the Company to further
increase its vertical integration and to enter a new segment of the PVC compound
market.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, which may include the repayment of indebtedness,
funds for working capital, capital expenditures and possible future acquisitions
associated with the expansion of the Company's business.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the Company was as follows for
the three months ended March 31, 1998 and 1997 and for each year of the five
year period ended December 31, 1997:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
- -------------------- -----------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1998 1997 1997 1996 1995 1994 1993
- --------- --------- --------- --------- --------- --------- ---------
3.6X 3.3X 4.8X 4.7X 10.8X 5.4X 2.3X
</TABLE>
The ratio of earnings to fixed charges was calculated based on information
obtained from the Company's books and records. In computing the ratio of
earnings to fixed charges, earnings consist of income before income taxes and
fixed charges, less interest capitalized net of amount amortized. Fixed charges
consist of interest costs on borrowed funds, including capitalized interest, and
a reasonable approximation of the imputed interest on non-capitalized lease
payments.
3
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DESCRIPTION OF SECURITIES
The Securities are to be issued under an Indenture, dated as of July 1, 1998
(the "Indenture"), between the Company and LaSalle National Bank, as Trustee
(the "Trustee"). The Indenture is subject to and governed by the Trust Indenture
Act of 1939, as amended. The statements under this caption relating to the
Securities and the Indenture are summaries and do not purport to be complete,
and where reference is made to particular provisions of the Indenture, such
provisions, including the definition of certain terms, are incorporated by
reference as a part of such summaries or terms, which are qualified in their
entirety by such reference. Unless otherwise indicated, references under this
caption to sections, "Section" or articles are references to the Indenture. A
copy of the Indenture has been filed with the Commission as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Indenture does not limit the aggregate amount of Securities which may be
issued thereunder. The Securities may be issued from time to time in one or more
series. Reference is made to the accompanying Prospectus Supplement for the
following terms and other information with respect to the Securities being
offered hereby: (i) the title of such Securities; (ii) any limit on the
aggregate principal amount of any series of such Securities; (iii) the persons
to whom any interest on such Securities will be payable, if other than the
registered holders thereof on the record date therefor; (iv) the date or dates
(or manner of determining the same) on which the principal of such Securities
will be payable; (v) the rate or rates (or manner of determining the same) at
which such Securities will bear interest, and the date or dates from which such
interest will accrue; (vi) the dates (or manner of determining the same) on
which such interest will be payable and the record dates for such Interest
Payment Dates; (vii) the place or places where the principal of and any premium
and interest on such Securities will be payable; (viii) the period or periods,
if any, within which, and the price or prices at which, such Securities may be
redeemed, in whole or in part, at the option of the Company; (ix) any mandatory
or optional sinking fund or analogous provisions; (x) the denominations in which
any Securities will be issuable if other than denominations of $1,000 and any
integral multiple thereof; (xi) the currency or currencies or currency units, if
other than currency of the United States of America, in which payment of the
principal of and any premium or interest on such Securities will be payable, and
the terms and conditions of any elections that may be made available with
respect thereto; (xii) any index or formula used to determine the amount of
payments of principal of and any premium or interest on such Securities; (xiii)
whether the Securities are to be issued in whole or in part in the form of one
or more global securities ("Global Securities"), and, if so, the identity of the
depositary, if any, for such Global Security or Securities; (xiv) the terms and
conditions, if any, pursuant to which such Securities are convertible into or
exchangeable for Common Stock or other securities of the Company or other
issuers (provided, however, that any such securities issuable upon conversion or
exchange of Securities will be subject to registration under the Securities Act
or an applicable exemption therefrom); (xv) the applicability of the provisions
described in "-- Defeasance" herein; (xvi) any subordination provisions
applicable to such Securities; and (xvii) any other terms of the Securities.
If the purchase price of any of the Securities is denominated in a foreign
currency or currencies or a foreign currency unit or units or if the principal
of and any premium and interest on any series of Securities is payable in a
foreign currency or currencies or a foreign currency unit or units, the
restrictions, elections, general tax considerations, specific terms, and other
information with respect to such issue of Securities and such foreign currency
or currencies or foreign currency unit or units will be set forth in an
applicable Prospectus Supplement.
Unless otherwise indicated in an applicable Prospectus Supplement, (i) the
Securities will be issued only in fully registered form in denominations of
$1,000 or integral multiples thereof and (ii) payment of principal, premium (if
any), and interest on the Securities will be payable, and the exchange,
conversion, and transfer of Securities will be registerable, at the office or
agency of the Company maintained for such purposes and at any other office or
agency maintained for such purpose. No service charge will be made
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for any registration of transfer or exchange of the Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
BOOK-ENTRY SYSTEM
The Securities of a series may be issued in whole or in part in the form of
one or more fully registered Global Securities that may be deposited with, or on
behalf of, a depository (a "Depositary") or its nominee identified in an
applicable Prospectus Supplement. In such a case, one or more Global Securities
will be issued in a denomination or aggregate denominations equal to the portion
of the aggregate principal amount of Securities of the series to be represented
by such Global Security or Securities. Unless and until it is exchanged in whole
or in part for Securities in registered form, a Global Security may not be
registered for transfer or exchange except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any nominee to a successor Depositary or a nominee of such
successor Depositary and except in any other circumstances described in an
applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any portion
of a series of Securities to be represented by a Global Security will be
described in an applicable Prospectus Supplement. The Company expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement,
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Securities represented by such Global Security to the accounts of
institutions that have accounts with such depositary or its nominee
("Participants"). The accounts to be credited will be designated by the
underwriters or agents of such Securities or by the Company, if such Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in such Global Securities will be limited to Participants or Persons that may
hold interests through Participants. Ownership of beneficial interests by
Participants in such Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through Participants will
be shown on, and the transfer of that ownership interest within such Participant
will be effected only through, records maintained by such Participants. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Securities
represented by such Global Security for all purposes under the Indenture. Unless
otherwise specified in an applicable Prospectus Supplement, owners of beneficial
interests in such Global Securities will not be entitled to have Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Securities of such
series in certificated form, and will not be considered the owners or Holders
thereof for any purpose under the Indenture. Accordingly, each Person owning a
beneficial interest in such Global Security must rely on the procedures of the
Depositary and, if such Person is not a Participant, on the procedures of the
Participant through which such Person owns its interest, to exercise any rights
of a Holder under the Indenture. The Company understands that, under existing
industry practices, if the Company requests any action of Holders or an owner of
a beneficial interest in such Global Security desires to give any notice or take
any action a Holder is entitled to give or take under the Indenture, the
Depositary would authorize the Participants to give such notice or take such
action, and Participants would authorize beneficial owners
5
<PAGE>
owning through such Participants to give such notice or take such action or
would otherwise act upon the instructions of beneficial owners owning through
them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in an applicable Prospectus Supplement. Payment
of principal of, and any premium or interest on, Securities registered in the
name of or held by a Depositary or its nominee will be made to the Depositary or
its nominee, as the case may be, as the registered owner or the holder of the
Global Security representing such Securities. None of the Company, the Trustee,
any Paying Agent, or the Registrar for such Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
for such Securities or for maintaining, supervising, or reviewing any records
relating to such beneficial ownership interests.
CERTAIN COVENANTS
PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company will be required to
duly and punctually pay the principal of, and any premium and interest on the
Securities of each series in accordance with the terms of that series of
Securities and the Indenture.
MAINTENANCE OF OFFICE OR AGENCY. The Company will be required to maintain
an office or agency in the Borough of Manhattan, The City of New York, and such
other places as the Company shall designate for each series of Securities, for
notice and demand purposes and for the purposes of presenting or surrendering
Securities for payment, registration of transfer, or exchange.
MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST. If the Company acts as its
own paying agent with respect to any series of Securities, on or before each due
date of the principal of, or interest on any of the Securities of that series,
it will be required to segregate and hold in trust for the benefit of the
persons entitled thereto a sum sufficient to pay such amount due and to notify
the Trustee promptly of its action or failure so to act. If the Company has one
or more paying agents for any series of Securities, prior to each due date of
the principal of or interest on any Securities of that series, it will deposit
with a paying agent a sum sufficient to pay such amount, and the Company will
promptly notify the Trustee of its action or failure so to act (unless such
paying agent is the Trustee). All moneys paid by the Company to a paying agent
for the payment of principal of and premium and interest on any Securities that
remain unclaimed for two years after such principal, premium or interest has
become due and payable may be repaid to the Company, and thereafter the holder
of such Securities may look only to the Company for payment thereof.
EXISTENCE. The Company will be required to preserve and keep in full force
its existence, charter rights, statutory rights, and franchises, except to the
extent that the Board of Directors in good faith determines that the
preservation of any such right or franchise is no longer desirable in the
conduct of the Company's business and that the loss thereof is not
disadvantageous in any material respect to the Holders.
MAINTENANCE OF PROPERTIES. The Company will be required to cause all
properties used in the business of the Company or any Subsidiary of the Company
to be maintained and kept in good condition, repair, and working order, all as
in the judgment of the Company may be necessary so that the business carried on
in connection therewith may be properly conducted, provided, however, the
Company may discontinue the operation or maintenance of any such properties if
determined by the Board of Directors to be desirable and not disadvantageous in
any material respect to the Holders.
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will be required to pay and
discharge, before the same become delinquent, (i) all taxes, assessments, and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or their properties and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law result in a lien on their property,
unless being contested in good faith.
6
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RESTRICTIVE COVENANTS. Any restrictive covenants applicable to any series
of Securities will be described in an applicable Prospectus Supplement.
MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS
The Company may not, in a single transaction or a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer or lease or otherwise dispose of all or substantially
all of its properties and assets to any Person or group of affiliated Persons
unless: (1) in a transaction in which the Company does not survive or in which
the Company sells, leases or otherwise disposes of all or substantially all of
its assets, the successor entity to the Company is organized under the laws of
the United States of America or any State thereof or the District of Columbia
and shall expressly assume, by a supplemental indenture executed and delivered
to the Trustee in form satisfactory to the Trustee, all of the Company's
obligations under the Indenture; (2) immediately before and after giving effect
to such transaction and treating any Debt incurred by the Company as a result of
such transaction as having been incurred by the Company at the time of the
transaction, no Event of Default or event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default shall have
occurred and be continuing; and (3) certain other conditions are met. (Section
801)
EVENTS OF DEFAULT
The following will be Events of Default with respect to Securities of any
series under the Indenture: (a) failure to pay principal of any Security of that
series when due; (b) failure to pay any interest on any Security of that series
when due, continued for 30 days; (c) failure to perform any other covenant or
agreement of the Company under the Indenture or the Securities of any series
continued for 60 days after written notice to the Company by the Trustee or
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series; (d) default under the terms of any instrument
evidencing or securing Debt by the Company having an outstanding principal
amount of $25 million individually or in the aggregate which default results in
the acceleration of the payment of such indebtedness or constitutes the failure
to pay principal payments of such indebtedness when due, which failure is not
cured for 30 days; and (e) certain events of bankruptcy, insolvency or
reorganization affecting the Company. (Section 501) Subject to the provisions of
the Indenture relating to the duties of the Trustee in case an Event of Default
(as defined) shall occur and be continuing, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series. (Section 512)
If an Event of Default (other than an Event of Default described in Clause
(e) above) shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of that
series, with respect to the Events of Default described in Clauses (a), (b) and
(c) above, or the Holders of at least 40% in aggregate principal amount of the
Outstanding Securities of that series, with respect to the Event of Default
described in Clause (d), may accelerate the maturity of all the Securities of
that series; provided, however, that after such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in aggregate
principal amount of Outstanding Securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than the non-payment of accelerated principal, have been cured or waived
as provided in the Indenture. If an Event of Default specified in Clause (e)
above occurs, the Outstanding Securities will ipso facto become immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder. (Section 502) For information as to waiver of defaults, see
"--Modification and Waiver."
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No Holder of any Security of any series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default (as defined) with respect to Securities of that
series and unless also the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series with respect to the Events of
Default described in Clauses (a), (b) and (c) above, or the Holders of at least
40% in aggregate principal amount of the Outstanding Securities of that series,
with respect to the Event of Default described in Clause (d) above, shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. (Section 507) However,
such limitations do not apply to a suit initiated by a Holder of a Security for
enforcement of payment of the principal of or interest on such Security on or
after the respective due dates expressed in such Security. (Section 508)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1007)
GOVERNING LAW
The Indenture and the Securities will be governed by the laws of the State
of New York.
DEFEASANCE
The Indenture provides that, at the option of the Company, (A) if
applicable, the Company will be discharged from any and all obligations in
respect of the Outstanding Securities of any series designated as being a
Defeasible Series (as defined) or (B), if applicable, the Company may omit to
comply with certain restrictive covenants and that such omission shall not be
deemed to be an Event of Default under the Indenture and the Outstanding
Securities of any Defeasible Series, in either case (A) or (B) upon irrevocable
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
(as defined) which will provide money in an amount sufficient in the opinion of
a nationally recognized firm of independent certified public accountants to pay
the principal of, and any premium and each installment of interest, if any, on
the Outstanding Securities of such series. With respect to clause (B), the
obligations under the Indenture other than with respect to such covenants and
the Events of Default other than the Events of Default relating to such
covenants shall remain in full force and effect. Such trust may only be
established if, among other things (i) with respect to clause (A), the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or there has been a change in law, which in the Opinion of Counsel
provides that Holders of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred; or, with
respect to clause (B), the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and defeasance and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; (ii) no Event of
Default or event that with the passing of time or the giving of notice, or both,
shall constitute an Event of Default shall have occurred or be continuing; (iii)
the Company has delivered to the Trustee an Opinion of Counsel to the effect
that such deposit shall not cause the Trustee or the trust so created to be
subject to the Investment Company Act of 1940; and (iv) certain other customary
conditions precedent are satisfied. (Article Twelve)
8
<PAGE>
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series affected by such
modification, waiver or supplemental indenture; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Security affected thereby, (a) change the Stated Maturity of the
principal of, or any installment of interest on, any Security, (b) reduce the
principal amount or interest on or any premium payable upon the redemption of,
any Security, (c) change the place or currency of payment of principal of,
interest, or any premium on, any Security, (d) impair the right to institute
suit for the enforcement of any payment on or with respect to any Security, (e)
reduce the above-stated percentage of Outstanding Securities of any series
necessary to modify or amend the Indenture or any supplemental indenture, (f)
reduce the percentage of principal amount of Outstanding Securities of any
series necessary for waiver of compliance with certain provisions of the
Indenture or any supplemental indenture or for waiver of certain defaults or (g)
modify any provisions of the Indenture or any supplemental indenture relating to
the modification and amendment of the Indenture or the waiver of past defaults
or covenants, except as otherwise specified. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series, on behalf of all Holders of Securities of that series,
may waive compliance by the Company with certain restrictive provisions of the
Indenture relating to such series of Securities. (Section 1008) Subject to
certain rights of the Trustee, as provided in the Indenture, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series, on behalf of all Holders of all of the Securities of such series, may
waive any past default under the Indenture, except a default in the payment of
principal or interest. (Section 513)
THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. During the existence of an Event of Default, the Trustee will
exercise such rights and powers vested in it under the Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
under the circumstances in the conduct of such person's own affairs.
(SectionSection 601 and 605)
The Indenture and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the Trustee, should it
become a creditor of the Company, to obtain payment of claims in certain cases
or to realize on certain property received by it in respect of any such claim as
security or otherwise. The Trustee is permitted to engage in other transactions
with the Company, or any Affiliate, provided, however, that if it acquires any
conflicting interest (as defined in the Indenture or in the Trust Indenture
Act), it must eliminate such conflict or resign. (Section 608)
9
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities in any one or more of the following
ways: (i) through one or more underwriters, (ii) through one or more dealers or
agents (which may include one or more underwriters), or (iii) directly to one or
more purchasers.
The distribution of the Securities may be effected from time to time in one
or more transactions, including negotiated transactions, at a fixed initial
public offering price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. In connection with the sale of the Securities,
underwriters, dealers or agents may receive compensation from the Company or
from purchasers of the Securities in the form of discounts, concessions or
commissions. Underwriters, dealers and agents who participate in the
distribution of the Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter, dealer or agent will
be identified and any such compensation received from the Company will be
described in an applicable Prospectus Supplement. Any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of the Securities may be
entitled to indemnification by the Company against certain liabilities,
including under the Securities Act, or to contribution from the Company to
payments which the underwriters, dealers, or agents may be required to make in
respect thereof. The underwriters, dealers, and agents may engage in
transactions with, or perform services for, the Company in the ordinary course
of business.
The Securities will be a new issue of Securities with no established trading
market. Any underwriters to whom Securities are sold by the Company for public
offering and sale may make a market in such Securities, but such underwriters
will not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given as to the liquidity of the secondary
market for any Securities.
Underwriters, dealers and agents may engage in over-allotment, stabilizing
transactions and covering transactions in accordance with Regulation M under the
Exchange Act. Over-allotment involves sales in excess of the offering size,
which creates a short position. Stabilizing transactions permit bids and
purchases of the Securities so long as the stabilizing bids do not exceed a
specified maximum. Covering transactions involve purchases of the Securities in
the open market in order to cover short positions. Such stabilizing transactions
and covering transactions may cause the price of the Securities to be higher
than it would otherwise be in the absence of such transactions. Such
transactions, if commenced, may be discontinued without notice.
VALIDITY OF SECURITIES
Unless otherwise indicated in an applicable Prospectus Supplement, the
validity of the Securities offered hereby will be passed upon for the Company by
Jones, Day, Reavis & Pogue, Atlanta, Georgia.
EXPERTS
The Company's financial statements and schedules incorporated herein and in
the Registration Statement of which this Prospectus is a part have been audited
by Arthur Andersen LLP, independent public accountants, to the extent and for
the periods indicated in their reports thereon and have been incorporated herein
in reliance upon the authority of said firm as experts in giving such reports.
10
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY ANY SECURITY OTHER THAN THE SECURITIES TO WHICH
IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Available Information........................... 2
Documents Incorporated by Reference............. 2
The Company..................................... 3
Recent Developments............................. 3
Use of Proceeds................................. 3
Ratio of Earnings to Fixed Charges.............. 3
Description of Securities....................... 4
Plan of Distribution............................ 10
Validity of Securities.......................... 10
Experts......................................... 10
</TABLE>
$200,000,000
GEORGIA GULF CORPORATION
DEBT SECURITIES
---------------------
PROSPECTUS
---------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the offering are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT*
- ------------------------------------------------------------------------------------------------------ ----------
<S> <C>
Registration fee...................................................................................... $ 59,000
Blue sky fees and expenses............................................................................ 20,000
Printing and engraving expenses....................................................................... 75,000
Legal fees and expenses............................................................................... 75,000
Accounting fees and expenses.......................................................................... 10,000
Trustee fees and expenses............................................................................. 7,500
Rating agency fees.................................................................................... 125,000
Miscellaneous expenses................................................................................ 10,500
----------
Total............................................................................................. $ 382,000
----------
----------
</TABLE>
- ------------------------
* All amounts estimated except the Registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XIII of the Company's Certificate of Incorporation provides that to
the fullest extent permitted by the Delaware General Corporation Law, a Director
of the Company shall not be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the Director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware Corporation Law or (iv) for any transaction from which the Director
derived any improper personal benefit.
The Company's Bylaws (Article XIII) provide that the Company shall indemnify
any person who was or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Company), by reason of the fact that he is or was a Director or officer of the
Company or is or was serving at the request of the Company as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, against all expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
With respect to indemnification of officers and directors, Section 145 of
the Delaware General Corporation Law provides that a corporation shall have
power to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal
II-1
<PAGE>
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. Under this provision of the Delaware General Corporation Law, the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Furthermore, the Delaware General Corporation Law provides that a
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of such court shall deem proper.
Section 145(g) of the Delaware General Corporation Law provides that a
corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of Section 145.
The Company maintains several directors and officers liability policies
which, subject to the terms and exclusions of the policies, cover any claim or
claims made during the period the policies are in force, against all persons who
were, now are or shall be duly elected directors or officers of the Company for
any actual or alleged error or misstatement or misleading statement or act or
omission or neglect or breach of duty by such persons insured while acting in
their individual or collective capacities, on any matter, nor excluded by the
terms and conditions of the policies, claimed against them solely by reason of
their being directors or officers of the Company. The limit of liability under
the policies is $50 million per policy year.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS. The following exhibits are filed as part of this Registration
Statement.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ----------- ------------------------------------------------------------------------------------------------------
<C> <S>
1 Underwriting Agreement (to be filed, as applicable to a particular offering of Securities, as an
exhibit to a Current Report on Form 8-K and incorporated by reference thereto)
4.1+ Indenture, dated as of July 1, 1998, between the Company and LaSalle National Bank, as Trustee
(including the form of the Securities)
4.2 Supplemental Indenture (to be filed, as applicable to a particular offering of Securities, as an
exhibit to a Current Report on Form 8-K and incorporated by reference thereto)
5+ Opinion of Jones, Day, Reavis & Pogue re: legality
12* Statement re: computation of ratios
23(a)+ Consent of Arthur Andersen LLP
23(b)+ Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
24* Power of Attorney
25* Statement re: eligibility of trustee on Form T-1 of LaSalle National Bank, as Trustee
</TABLE>
- ------------------------
* Previously filed.
+ Filed herewith.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; and
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
II-3
<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time will be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement will be
deemed to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time will be deemed to be
the initial bona fide offering thereof.
(5) That, (i) for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective and (ii) for the purpose of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer,
or controlling person of the Company in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of counsel for the Company the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this amendment to its
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Atlanta, State of Georgia, on the 2nd day of
July, 1998.
GEORGIA GULF CORPORATION
By: /s/ EDWARD A. SCHMITT
-----------------------------------------
Edward A. Schmitt
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed below by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
<C> <S> <C>
President, Chief Executive
/s/ EDWARD A. SCHMITT Officer and Director
- ------------------------------ (Principal Executive July 2, 1998
Edward A. Schmitt Officer)
Vice President Finance,
* Chief Financial Officer
- ------------------------------ and Treasurer (Principal
Richard B. Marchese Financial and Accounting
Officer)
* Chairman of the Board and
- ------------------------------ Director
James R. Kuse
Director
- ------------------------------
John D. Bryan
Director
- ------------------------------
Dennis M. Chorba
* Director
- ------------------------------
Alfred C. Eckert III
* Director
- ------------------------------
Robert E. Flowerree
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
<C> <S> <C>
* Director
- ------------------------------
Jerry R. Satrum
* Director
- ------------------------------
Edward S. Smith
</TABLE>
<TABLE>
<C> <S> <C>
*By: /s/ EDWARD A.
SCHMITT July 2, 1998
- ------------------------------
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
1 Underwriting Agreement (to be filed, as applicable to a particular offering of Securities, as an
exhibit to a Current Report on Form 8-K and incorporated by reference thereto)
4.1+ Indenture, dated as of July 1, 1998, between the Company and LaSalle National Bank, as Trustee
(including the form of the Securities)
4.2 Supplemental Indenture (to be filed, as applicable to a particular offering of Securities, as an
exhibit to a Current Report on Form 8-K and incorporated by reference thereto)
5+ Opinion of Jones, Day, Reavis & Pogue re: legality
12* Statement re: computation of ratios
23(a)+ Consent of Arthur Andersen LLP
23(b)+ Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5)
24* Power of Attorney (included in signature page)
25* Statement re: eligibility of trustee on Form T-1 of LaSalle National Bank, as Trustee
</TABLE>
- ------------------------
* Previously filed.
+ Filed herewith.
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
GEORGIA GULF CORPORATION
AND
LASALLE NATIONAL BANK
Trustee
----------------
Indenture
Dated as of July 1, 1998
----------------
Securities
- --------------------------------------------------------------------------------
<PAGE>
Georgia Gulf Corporation
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of July 1, 1998
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
Section 310(a)(1) .............................................609
(a)(2) .............................................609
(a)(3) .............................................Not Applicable
(a)(4) .............................................Not Applicable
(b) .............................................608
.............................................610
Section 311(a) .............................................613(a)
(b) .............................................613(b)
(b)(2) .............................................703(a)(2)
.............................................703(b)
Section 312(a) .............................................701
.............................................702(a)
(b) .............................................702(b)
(c) .............................................702(c)
Section 313(a) .............................................703(a)
(b) .............................................703(b)
(c) .............................................703(a)
.............................................703(b)
(d) .............................................703(c)
Section 314(a) .............................................704
(b) .............................................Not Applicable
(c)(1) .............................................102
(c)(2) .............................................102
(c)(3) .............................................Not Applicable
(d) .............................................Not Applicable
(e) .............................................102
Section 315(a) .............................................601(a)
(b) .............................................602
.............................................703(a)(6)
(c) .............................................601(b)
(d) .............................................601(c)
(d)(1) .............................................601(a)(1)
(d)(2) .............................................601(c)(2)
(d)(3) .............................................601(c)(3)
(e) .............................................514
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
Section 316(a) .............................................101
(a)(1)(A) .............................................502
.............................................512
(a)(1)(B) .............................................513
(a)(2) .............................................Not Applicable
(b) .............................................508
Section 317(a)(1) .............................................503
(a)(2) .............................................504
(b) .............................................1003
Section 318(a) .............................................107
</TABLE>
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
PARTIES .........................................................................................................1
RECITAL OF THE COMPANY............................................................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application
Definitions.......................................................................................................1
Act .......................................................................................2
Affiliate.......................................................................................2
Authenticating Agent............................................................................2
Board of Directors..............................................................................2
Board Resolution................................................................................2
Business Day....................................................................................2
Capital Stock...................................................................................2
Commission......................................................................................2
Common Stock....................................................................................2
Company .......................................................................................2
Company Request.................................................................................2
Company Order...................................................................................2
Corporate Trust Office..........................................................................3
Corporation.....................................................................................3
Debt .......................................................................................3
Defeasible Series...............................................................................3
Depositary......................................................................................3
Event of Default................................................................................3
Exchange Act....................................................................................3
Global Security.................................................................................3
Holder .......................................................................................3
Indenture.......................................................................................3
Interest Payment Date...........................................................................3
Maturity .......................................................................................4
Officers' Certificate...........................................................................4
Opinion of Counsel..............................................................................4
Outstanding.....................................................................................4
Paying Agent....................................................................................4
Person .......................................................................................4
Place of Payment................................................................................5
Predecessor Security............................................................................5
Redemption Date.................................................................................5
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Redemption Price................................................................................5
Regular Record Date.............................................................................5
Securities......................................................................................5
Security Register...............................................................................5
Security Registrar..............................................................................5
Special Record Date.............................................................................5
Stated Maturity.................................................................................5
Subsidiary......................................................................................5
Successor Company...............................................................................5
Trustee .......................................................................................5
Trust Indenture Act.............................................................................6
U.S. Government Obligations.....................................................................6
Vice President..................................................................................6
Voting Stock....................................................................................6
SECTION 102. Compliance Certificates and Opinions................................................................6
SECTION 103. Form of Documents Delivered to Trustee..............................................................6
SECTION 104. Acts of Holders; Record Date........................................................................7
SECTION 105. Notices, Etc., to Trustee and Company...............................................................8
SECTION 106. Notice to Holders; Waiver...........................................................................8
SECTION 107. Conflict with Trust Indenture Act...................................................................9
SECTION 108. Effect of Headings and Table of Contents............................................................9
SECTION 109. Successors and Assigns..............................................................................9
SECTION 110. Separability Clause.................................................................................9
SECTION 111. Benefits of Indenture...............................................................................9
SECTION 112. Governing Law.......................................................................................9
SECTION 113. Legal Holidays......................................................................................9
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally....................................................................................10
SECTION 202. Form of Face of Security...........................................................................10
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SECTION 203. Form of Reverse of Security........................................................................12
SECTION 204. Form of Trustee's Certificate of Authentication....................................................15
SECTION 205. Form of Legend for Global Securities...............................................................15
ARTICLE THREE
The Securities
SECTION 301. Title and Terms....................................................................................15
SECTION 302. Denominations......................................................................................17
SECTION 303. Execution, Authentication, Delivery and Dating.....................................................17
SECTION 304. Temporary Securities...............................................................................18
SECTION 305. Registration, Registration of Transfer and Exchange................................................18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...................................................20
SECTION 307. Payment of Interest; Interest Rights Preserved.....................................................20
SECTION 308. Persons Deemed Owners..............................................................................21
SECTION 309. Cancellation.......................................................................................22
SECTION 310. Computation of Interest............................................................................22
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture............................................................22
SECTION 402. Application of Trust Money.......................................................................23
ARTICLE FIVE
Remedies
SECTION 501. Events of Default..................................................................................23
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................................25
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee....................................26
SECTION 504. Trustee May File Proofs of Claim...................................................................26
SECTION 505. Trustee May Enforce Claims Without Possession of Securities........................................27
SECTION 506. Application of Money Collected.....................................................................27
SECTION 507. Limitation on Suits................................................................................27
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest...................................28
SECTION 509. Restoration of Rights and Remedies.................................................................28
SECTION 510. Rights and Remedies Cumulative.....................................................................29
SECTION 511. Delay or Omission Not Waiver.......................................................................29
SECTION 512. Control by Holders.................................................................................29
SECTION 513. Waiver of Past Defaults............................................................................29
SECTION 514. Undertaking for Costs..............................................................................30
SECTION 515. Waiver of Stay or Extension Laws...................................................................30
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities................................................................30
SECTION 602. Notice of Defaults.................................................................................30
SECTION 603. Certain Rights of Trustee..........................................................................31
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............................................32
SECTION 605. May Hold Securities................................................................................32
SECTION 606. Money Held in Trust................................................................................32
SECTION 607. Compensation and Reimbursement.....................................................................32
SECTION 608. Disqualification; Conflicting Interests............................................................33
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SECTION 609. Corporate Trustee Required; Eligibility............................................................33
SECTION 610. Resignation and Removal; Appointment of Successor..................................................33
SECTION 611. Acceptance of Appointment by Successor.............................................................34
SECTION 612. Merger, Conversion, Consolidation or Succession to Business........................................35
SECTION 613. Preferential Collection of Claims Against Company..................................................35
SECTION 614. Appointment of Authenticating Agent................................................................35
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..........................................37
SECTION 702. Preservation of Information; Communications to Holders.............................................37
SECTION 703. Reports by Trustee.................................................................................37
SECTION 704. Reports by Company.................................................................................38
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms................................................38
SECTION 802. Successor Substituted..............................................................................39
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.................................................39
SECTION 902. Supplemental Indentures With Consent of Holders....................................................40
SECTION 903. Execution of Supplemental Indentures...............................................................41
SECTION 904. Effect of Supplemental Indentures..................................................................41
SECTION 905. Conformity with Trust Indenture Act................................................................41
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SECTION 906. Reference in Securities to Supplemental Indentures.................................................41
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest........................................................42
SECTION 1002. Maintenance of Office or Agency...................................................................42
SECTION 1003. Money for Security Payments to be Held in Trust...................................................42
SECTION 1004. Existence.........................................................................................44
SECTION 1005. Maintenance of Properties.........................................................................44
SECTION 1006. Payment of Taxes and Other Claims.................................................................44
SECTION 1007. Statement by Officers as to Default...............................................................44
SECTION 1008. Waiver of Certain Covenants.......................................................................44
ARTICLE ELEVEN
Defeasance and Covenant Defeasance
SECTION 1101. Company's Option to Effect Defeasance or Covenant Defeasance......................................45
SECTION 1102. Defeasance and Discharge..........................................................................45
SECTION 1103. Covenant Defeasance...............................................................................45
SECTION 1104. Conditions to Defeasance or Covenant Defeasance...................................................46
SECTION 1105. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions...................................48
SECTION 1106. Reinstatement.....................................................................................48
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article..........................................................................49
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SECTION 1202. Election to Redeem; Notice to Trustee.............................................................49
SECTION 1203. Deposit of Redemption Price.......................................................................50
SECTION 1204. Securities Payable on Redemption Date.............................................................50
SECTION 1205. Securities Redeemed in Part.......................................................................50
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article..........................................................................51
SECTION 1302. Satisfaction of Sinking Fund Payments With Securities............................................51
SECTION 1303. Redemption of Securities for Sinking Fund.........................................................51
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ix
<PAGE>
PARTIES
INDENTURE, dated as of July 1, 1998 between Georgia Gulf
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office
at 400 Perimeter Center Terrace, Suite 595, Atlanta, Georgia 30346, and
LaSalle National Bank, a national banking association duly organized and
existing under the laws of the United States of America, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
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
and other evidences of indebtedness (the "Securities"), to be issued in one or
more series as in this Indenture provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the respective Holders from time to time of
the Securities or a series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
------------
For all purposes of this Indenture and of any indenture supplemental
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
(whether or not such is indicated herein), and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted as consistently applied by the
Company at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
1
<PAGE>
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"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.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York,
New York are authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means the common stock, $0.01 par value, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
2
<PAGE>
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered.
"Corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Debt" shall mean, as to any Person (determined without duplication):
(i) indebtedness of such Person for borrowed money (whether by loan or the
issuance and sale of debt securities) or for the deferred purchase or
acquisition price of property or services, other than accounts payable (other
than for borrowed money) incurred in the ordinary course of business; (ii)
obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for the
account of such Person; (iii) capitalized lease obligations under GAAP of such
Person; (iv) obligations of such Person to redeem or otherwise retire shares of
capital stock of such Person; (v) indebtedness of others of the type described
in clause (i), (ii), (iii) or (iv) above secured by a lien on the property of
such Person, whether or not the respective obligation so secured has been
assumed by such Person; and (vi) indebtedness of others of the type described in
clause (i), (ii) or (iv) above guaranteed by such Person.
"Defeasible Series" has the meaning specified in Section 1101.
"Depositary" means The Depository Trust Company or, if The Depository
Trust Company shall cease to be a clearing agency registered under the Exchange
Act, any other clearing agency registered under the Exchange Act that is
designated as the successor Depository in a Company Order delivered to the
Trustee.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may
be amended and any successor act thereto.
"Global Security" means a Security that evidences all or part of the
Securities of any series, and is authenticated and delivered to the Depositary
for such Securities or a nominee thereof under this Indenture and bears the
legend set forth in Section 205.
"Holder" means a Person in whose name a particular Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
The term "Indenture" will also include the terms of particular series of
Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
3
<PAGE>
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; and
(3) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
4
<PAGE>
"Place of Payment" means, when used with respect to Securities of any
series, the place or places where the principal of and any premium and interest
on the Securities of that series are payable as specified by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be redeemed,
the price (including premium, if any) at which such Security is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date of the Securities of any series means the date fixed for such payment by or
pursuant to this Indenture (whether or not a Business Day) next preceding such
Interest Payment Date.
"Securities" means securities designated in the paragraph entitled
RECITAL OF THE COMPANY.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
the date as fixed by the Trustee pursuant to Section 307(1).
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security, or interest thereon,
as the case may be, is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Successor Company" has the meaning specified in Section 801.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
5
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section
1104.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
SECTION 102. Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(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 each such individual, he has
made such examina tion or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
---------------------------------------
6
<PAGE>
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instru ments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 104.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of the Outstanding
7
<PAGE>
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of such
Securities. If not set by the Company prior to the first solicitation of a
Holder of any Securities of any series made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders of Securities of such series on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security of any series shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
--------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
pre scribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of
8
<PAGE>
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
----------------------------------
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
--------------------
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 111. Benefits of Indenture.
----------------------
Nothing in this Indenture or in any series of Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of any series of Securities, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
--------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
---------------
9
<PAGE>
In any case where any Interest Payment Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities) payment of interest or principal need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date or Stated Maturity to the next succeeding
Business Day, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
----------------
The Securities of each series and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article, or
in such other form as may be established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
-------------------------
GEORGIA GULF CORPORATION
-------------------------
No. $
------------ -----------------
Georgia Gulf Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________, or registered assigns,
the principal sum of __________________ Dollars on ____________ and to pay
interest thereon from _________________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
___________ and ___________ in each year, commencing on ____________, at the
rate of ___% per annum, until the principal hereof is paid or made available for
payment on , and (to the extent that the payment of such interest shall be
legally enforceable) at the rate of
10
<PAGE>
___% per annum on any overdue principal and on any overdue installment of
interest 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 ___________ or __________ (whether or not
a Business Day), as the case may be, next preceding 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 Trustee, notice
whereof shall be given to Holders of this series of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
Payment of the principal (and premium, if any) of and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in _________________ in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, 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 referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
--------------------------
Georgia Gulf Corporation
[Seal]
By:
----------------------
Title:
Attest:
- ---------------------------------
Title:
11
<PAGE>
SECTION 203. Form of Reverse of Security.
----------------------------
This Security is one of a duly authorized issue of Securities of the
Company (herein called the "Securities") issued under an Indenture, dated as of
_________________ (herein called the "Indenture"), between the Company and
LaSalle National Bank, as Trustee (herein called 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 [IF APPLICABLE,
INSERT: "limited in aggregate principal amount to $ "].
[IF APPLICABLE, INSERT: "The Securities of this series are subject to
redemption upon not less than 30 calendar days' notice by mail, [IF APPLICABLE,
INSERT: "(a) on _____________ in each year commencing with the year _______ and
ending with the year _______ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (b)"] at
any time [IF APPLICABLE, INSERT: "on or after _______________"], as a whole or
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [IF APPLICABLE,
INSERT: "on or before ______________, ___%, and if redeemed"] during the
12-month period beginning ___________ of the years indicated,
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT: "whether
through operation of the sinking fund or otherwise)"] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture."]
[IF APPLICABLE, INSERT: "The Securities of this series are subject to
redemption upon not less than 30 calendar days' notice by mail, [IF APPLICABLE,
INSERT: "(a) on ___________ in each year commencing with the year _______ and
ending with the year _______ through operation of the sinking fund for this
series at the following Redemption Prices (expressed as percentages of the
principal amount) applicable to redemption through operation of the sinking fund
and (b)"] at any time [IF APPLICABLE, INSERT: "on or after ______, _____"], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount) applicable to
redemption otherwise than through operation of the sinking fund: If redeemed [IF
APPLICABLE, INSERT: "on or before _______, ___, ___%, and if redeemed"] during
the 12-month period beginning __________ of the years indicated,
REDEMPTION
PRICE FOR
REDEMPTION
OTHERWISE
REDEMPTION PRICE FOR THAN THROUGH
REDEMPTION THROUGH OPERATION OF
OPERATION OF THE SINKING THE SINKING
YEAR FUND FUND
12
<PAGE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture."]
[IF APPLICABLE, INSERT: "Notwithstanding the foregoing, the Company may
not, prior to _____________, redeem any Securities of this series as
contemplated by [IF APPLICABLE, INSERT: "Clause (b) of"] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ___% per annum."]
[IF APPLICABLE, INSERT: "The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ________ and
ending with the year ________ of [IF APPLICABLE, INSERT: "not less than
$____________ ("mandatory sinking fund") and not more than "] $_____________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [IF
APPLICABLE, INSERT: "mandatory"] sinking fund payments may be credited against
subsequent [IF APPLICABLE, INSERT: "mandatory"] sinking fund payments otherwise
required to be made [IF APPLICABLE, INSERT: "in the inverse order in which they
become due"]."]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT: "In
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof."]
[IF APPLICABLE, INSERT: "The Indenture contains provisions for
defeasance at any time of (a) the entire indebtedness evidenced by this Security
or (b) certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture."
13
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
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 the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of New York, New York duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof 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.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
14
<PAGE>
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
LASALLE NATIONAL BANK, as Trustee
By:
---------------------------------------
Authorized Officer
SECTION 205. Form of Legend for Global Securities.
-------------------------------------
Every Global Security authenticated and delivered 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 A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
----------------
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 will be
established in, or pursuant to a Board Resolution and, subject to Section 303,
set forth or determined in the manner provided in an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series: (i) the title of the Securities of the series
(which will distinguish the Securities of the series from Securities of any
other series); (ii) the Person to
15
<PAGE>
whom any interest on a Security of the series will be payable, if other than the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest; (iii) the date or dates on which the principal of the Securities of
the series is payable; (iv) the rate or rates at which the Securities of the
series will bear interest, the date or dates from which such interest will
accrue, the Interest Payment Dates on which such interest will be payable, and
the Regular Record Date for any interest payable on any Interest Payment Date;
(v) the period or periods within which, the price or prices at which, and the
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company; (vi) the obligation, if any, of
the Company to redeem or purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which, and the terms
and conditions upon which Securities of the series will be redeemed or
purchased, in whole or in part, pursuant to such obligation; (vii) if other than
denominations of $1,000 and integral multiples thereof, the denominations in
which Securities of the series will be issuable; (viii) the currency,
currencies, or currency units in which payment of the principal of and any
premium and interest on any Securities of the series will be payable, if other
than the currency of the United States of America, and the manner of determining
the equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101; (ix) if the amount
of payments of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index, based upon a formula, or in
some other manner, the manner in which such amounts will be determined; (x) if
the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or a Holder thereof, in one or
more currencies or currency units other than that or those in which the
Securities are stated to be payable, the currency, currencies, or currency units
in which payment of the principal of and any premium and interest on Securities
of such series as to which such election is made will be payable, and the
periods within which and the terms and conditions upon which such election is to
be made; (xi) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which will be payable upon
declaration of acceleration of the Maturity thereof; (xii) if applicable, that
the Securities of the series will be subject to either or both of defeasance or
covenant defeasance as provided in Article Eleven, provided that no series of
Securities that is convertible into Common Stock pursuant to this Section 301 or
convertible into or exchangeable for any other securities pursuant to this
Section 301 will be subject to defeasance pursuant to Article Eleven; (xiii) if
and as applicable, that the Securities of the series will be issuable in whole
or in part in the form of one or more Global Securities and, in such case, the
Depositary or Depositaries for such Global Security or Global Securities and any
circumstances other than those set forth in Section 305 in which any such Global
Security may be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be registered;
(xiv) the terms and conditions, if any, pursuant to which the Securities are
convertible into Common Stock; (xv) the terms and conditions, if any, pursuant
to which the Securities are convertible into or exchangeable for any other
securities, including (without limitation) securities of Persons other than the
Company; and (xvi) any other terms of, or provisions, covenants, rights or other
matters applicable to, the series (which terms, provisions, covenants, rights or
other matters will not be inconsistent with the provisions of this Indenture).
16
<PAGE>
All Securities of any one series will be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to herein and (subject to Section 303) set forth or
determined in the manner provided in the Officer's Certificate referred to above
or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
will be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee concurrently with or prior to the delivery of the
Officer's Certificate setting forth the terms of the series.
The principal of, and any interest on, the Securities shall be payable
at the office or agency of the Company in Chicago, Illinois maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
SECTION 302. Denominations.
--------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver one or more Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, which
Company Order shall specify whether such Securities are to be Global Securities;
and the Trustee in accordance with such Company Order shall authenticate and
deliver such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate
17
<PAGE>
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
---------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at an office or agency of the Company designated pursuant to Section 1002
for such purpose, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
18
<PAGE>
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 906.
The Company will not be required (i) to issue, register the transfer
of, or exchange Securities of any series during a period beginning at the
opening of business 15 calendar days before the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1202(c) and ending at the close of business on the day of such mailing or (ii)
to register the transfer of or exchange any Security so selected for redemption
in whole or in part, except, in the case of any Securities to be redeemed in
part, the portion thereof not being redeemed.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered to
the Depositary or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so exchangeable, or (C) there
shall have occurred and be continuing an Event of Default.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section 305, Section 304, 306 or 906 or
otherwise, shall be authenticated and delivered in the
19
<PAGE>
form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
-------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 306 in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of such series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of
20
<PAGE>
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are regis tered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause (1)
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such De faulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause
(2), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
----------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest on such Security and for all other purposes what soever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
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SECTION 309. Cancellation.
-------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
SECTION 310. Computation of Interest.
------------------------
Except as otherwise provided by Section 301 for Securities of any
series, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
----------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of regis tration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Sec
tion 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year,
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and the Company, in the case of (i) or (ii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Stated Maturity;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
---------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
------------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
23
<PAGE>
(2) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose perfor mance or whose breach is elsewhere
in this Section 501 specifically dealt with, or which has been included
in this Indenture solely for the benefit of one or more series of
Securities other than this series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) a default or defaults under any bond(s), debenture(s),
note(s) or other evidence(s) of Debt by the Company or under any
mortgage(s), indenture(s) or instru ment(s) under which there may be
issued or by which there may be secured or evidenced any Debt of such
type by the Company with a principal amount then outstanding,
individually or in the aggregate, in excess of $25 million, whether
such Debt now exists or shall hereafter be created, which default or
defaults shall have resulted in such Debt becoming or being declared
due and payable prior to the date on which it would otherwise have
become due and payable or constitutes the failure to pay principal
payments of such indebtedness when due, which failure is not cured
within 30 days; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of the property of
the Company, or ordering the winding up or liquidation of the affairs
of the Company, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
the Company to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company, or the filing by the
Company of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by the
Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee,
24
<PAGE>
sequestrator or similar official of the Company or of any substantial
part of the property of the Company, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) default in the making of any sinking fund payment when and
as due by the terms of a Security of that series; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(5) or (6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series, with respect to the Events of Default specified in
Section 501(1), (2) or (3), or the Holders of not less than 40% in aggregate
principal amount of the Outstanding Securities, with respect to the Event of
Default specified in Section 501(4), may declare the principal amount (and
premium, if any) of all the Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal and any accrued
interest shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or (6) occurs, the principal of, premium, if any,
and any accrued interest on the Securities then Outstanding shall ipso facto
become immediately due and payable without any declaration or other Act on the
part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article Five provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any,) on any
Securities of that series which have become due otherwise than
by such declaration of acceleration and, to the extent that
payment of such interest is lawful, interest thereon at the
rate provided by such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the Securities of that series, and
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<PAGE>
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
----------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any) on any Security at its Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities of that series, the whole amount then due and payable
on such Securities for principal and any premium and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and on any overdue interest, at the rate provided by such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities of that series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities
of that series, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
---------------------------------
26
<PAGE>
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder 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 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 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
------------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
-------------------------------
Any money collected by the Trustee pursuant to this Article Five shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind (unless any
Securities of a series by their terms expressly provide for the
subordination of such Securities), according to the amounts due and
payable on such Securities for principal and any premium and interest,
respectively.
SECTION 507. Limitation on Suits.
--------------------
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<PAGE>
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
-----------------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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<PAGE>
SECTION 510. Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
-------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of that series waive any past default hereunder and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any),
or interest on any Security of that series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of that series affected.
29
<PAGE>
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section 514 nor the Trust Indenture
Act shall be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which 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 will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
------------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protec tion to the Trustee shall be
subject to the provisions of this Section 601.
SECTION 602. Notice of Defaults.
-------------------
The Trustee shall give the Holders of Securities of any series notice
of any default hereunder with respect to the Securities of that series as and to
the extent provided by the Trust Indenture Act; provided, however, that in the
case of any default of the character specified in Section 501(3), no such notice
to Holders shall be given until at least 30 days after the occurrence
30
<PAGE>
thereof. For the purpose of this Section 602, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
--------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
--------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
--------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
-------------------------------
The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, lia bility or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
32
<PAGE>
SECTION 608. Disqualification; Conflicting Interests.
----------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
----------------------------------------
There shall at all times be one or more Trustees hereunder with respect
to the Securities of each Series which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 609,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 609, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article Six.
SECTION 610. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any
33
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public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee to all Holders of Securities of such series in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
---------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
------------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the cor porate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
--------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
------------------------------------
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer or
pursuant to Section 306, and Securities so authen ticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section 614.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 614, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series of Securities is
made pursuant to this Section 614, the Securities may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
described in the within-mentioned Indenture.
LASALLE NATIONAL BANK, As Trustee
By:
-------------------------------
As Authenticating Agent
By:
-------------------------------
Authorized Officer
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
----------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list for each series of Securities of such series, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
-------------------
(a) Within 60 days after December 31 of each year (in the case of
annual reports) and as and when required (in the case of all other reports), the
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act to be so transmitted and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the
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Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
-------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.
----------------------------------------------------
The Company shall not, in a single transaction or through a series of
related transactions, (a) consolidate with or merge with or into any other
Person, or (b) sell, assign, convey, transfer or lease or otherwise dispose of
all or substantially all of its properties and assets to any Person or group of
affiliated Persons, unless:
(1) in a transaction in which the Company consolidates with or
merges with or into another Person and is not the surviving entity of
such consolidation or merger or in which the Company directly or
indirectly sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its properties and assets as an
entirety, (a) the Person formed by such consolidation or with or into
which the Company is merged or the Person that acquires by sale,
assignment, conveyance, transfer, lease or other disposition all or
substantially all of the properties and assets of the Company as an
entirety (for purposes of this Article Eight, a "Successor Company")
shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and (b) the Successor Company
shall expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and interest on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately before and after giving effect to such
transaction and treating any Debt incurred by the Company as a result
of such transaction as having been incurred by the Company at the time
of such transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of Default,
shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer,
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lease or acquisition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, complies
with this Article Eight and that all con ditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
----------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default;
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to add to or change any of the provisions of this
Indenture to such extent as may be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
39
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(6) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action pursuant to
this Clause (5) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect; or
(7) to add to, change, or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) will 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) will become effective
only when there is no such Security Outstanding; or
(8) to establish the form or forms of Securities of any series
as permitted by Sections 201, 202, 204 and 301; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of the
Indenture as may be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611.
SECTION 902. Supplemental Indentures With Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the place of payment where, or
the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
40
<PAGE>
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions this Section 902, Section 513
or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby.
A supplemental indenture which 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 of Securities of such series with respect to such
covenant or other provision, will 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 any Act of Holders under this Section 902
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
------------------------------------
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so
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<PAGE>
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
-------------------------------------------
The Company, for the benefit of each series of Securities, will duly
and punctually pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
--------------------------------
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities of one or more series 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 Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
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<PAGE>
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or
interest on any Securities of that series, 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 will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of or any premium or interest on Securities of any series in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal or any premium or interest; and
(3) at any time during the continuance of any such default
upon the Securities of such series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall there
after, as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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SECTION 1004. Existence.
----------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
--------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary of the Company to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 1005 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
----------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or
any of its Sub sidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
------------------------------------
The Company will deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 1008. Waiver of Certain Covenants.
----------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801, Sections 1005 to 1008 inclusive,
and the provisions of any supplemental indenture specified in such supplemental
indenture, with respect to the Securities of
44
<PAGE>
any series, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
Defeasance and Covenant Defeasance
SECTION 1101. Company's Option to Effect Defeasance or Covenant Defeasance.
-------------------------------------------------------------
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1102 or Section 1103 applied to the Outstanding
Securities of any series designated pursuant to Section 301 as being defeasible
pursuant to this Article Eleven (a "Defeasible Series"), upon compliance with
the conditions set forth below in this Article Eleven, provided that Section
1102 will not apply to any series of Securities that is either convertible into
Common Stock or convertible into or exchangeable for any other Securities
pursuant to Section 301.
SECTION 1102. Defeasance and Discharge.
-------------------------
Upon the Company's exercise of the option provided in Section 1101
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such
Defeasible Series on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities of such series and this
Indenture insofar as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Securities of such series to receive, solely from the trust fund described in
Section 1104 and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities of such series when such
payments are due, (B) the Company's obligations with respect to the Securities
of such series under Sections 304, 305, 306, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article Eleven. Subject to compliance with this Article Eleven, the Company may
exercise its option under this Section 1102 notwithstanding the prior exercise
of its option under Section 1103.
SECTION 1103. Covenant Defeasance.
--------------------
Upon the Company's exercise of the option provided in Section 1101
applicable to this Section with respect to Outstanding Securities of any
Defeasible Series, (i) the Company shall be released from its obligations under
Sections 1005 through 1008, inclusive, Clause (3) of
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Section 801, and the provisions of any supplemental indenture specified in such
supplemental indenture, and (ii) the occurrence of an event specified in
Sections 501(3) (with respect to any of Sections 1005 through 1008, inclusive)
501(4) and the provisions of any supplemental indenture specified in such
supplemental indenture shall not be deemed to be an Event of Default in each
case with respect to Outstanding Securities of such series on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, Clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section, Clause or Article or by reason of any reference in any such
Section, Clause or Article to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
SECTION 1104. Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to application of either Section
1102 or Section 1103 to the then Outstanding Securities of any Defeasible
Series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Eleven applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities or on any
earlier date or dates on which the Securities of such series shall be
subject to redemption and the Company shall have given the Trustee
irrevocable instructions satisfactory to the Trustee to give notice to
the Holders of the redemption of the Securities of such series in
accordance with the terms of this Indenture and of the Securities of
such series. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not
46
<PAGE>
authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depository receipt.
(2) In the case of an election under Section 1102, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(3) In the case of an election under Section 1103, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit and covenant defeasance had
not occurred.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities of such series,
if then listed on any securities exchange, will not be delisted as a
result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company.
(6) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
501(5) and (6) are concerned, at any time during the period ending on
the 121st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(7) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1102 or the covenant defeasance under Section 1103 (as
the case may be) have been complied with.
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<PAGE>
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1105. Deposited Money and U.S. Government Obligations
-----------------------------------------------
to be Held in Trust; Other Miscellaneous Provisions.
----------------------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively, for purposes of
this Section 1105, the "Trustee") pursuant to Section 1104 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1104 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Eleven to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1104 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance with respect to the Securities of such series.
SECTION 1106. Reinstatement.
--------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1102 or 1103 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Eleven with respect to Securities of such
series until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 1102 or 1103; provided, however, that if
the Company makes any payment of principal of or any premium or interest on any
Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to receive such payment from the money held by the Trustee or the Paying
Agent.
48
<PAGE>
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article.
-------------------------
Securities of any series which are redeemable before their Stated
Maturity will be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article Twelve.
SECTION 1202. Election to Redeem; Notice to Trustee.
--------------------------------------
(a) The election of the Company to redeem any Securities will be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company will, at
least 60 calendar days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company will furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the election
of the Company will be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and will be irrevocable.
Notice of redemption will be given by mail, first-class postage prepaid, not
less than 30 or more than 60 calendar days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register. All notices of redemption will state (i) the Redemption Date, (ii) the
Redemption Price, (iii) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed, (iv) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(v) the place or places where such Securities are to be surrendered for payment
of the Redemption Price, (vi) that the redemption is for a sinking fund, if such
is the case, and (vii) the specific provision of this Indenture pursuant to
which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed will be selected not more than 60
calendar days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee may deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. The Trustee
will promptly notify the Company in writing of the
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<PAGE>
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
(d) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities will relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1203. Deposit of Redemption Price.
----------------------------
Prior to 10:00 a.m. on any Redemption Date specified in the notice of
redemption given as provided in Section 1202, the Company will deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in this Indenture) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on, all of the
Securities that are to be redeemed on that date.
SECTION 1204. Securities Payable on Redemption Date.
--------------------------------------
(a) Notice of redemption having been given as aforesaid, the Securities
so to be redeemed will, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company defaults in the payment of the Redemption Price and accrued interest)
such Securities will cease to accrue interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security will be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates in accordance with their terms
and the provisions of Section 307.
(b) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium will, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1205. Securities Redeemed in Part.
----------------------------
Any Security that is to be redeemed only in part will be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company will execute, and the Trustee will
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as required by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article.
-------------------------
The provisions of this Article Thirteen will be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities for such series. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
amount of any sinking fund payment may be subject to reduction as provided in
Section 1302. Each sinking fund payment with respect to Securities of a
particular series will be applied to the redemption of Securities of such series
as provided for by the terms of Securities of such series.
SECTION 1302. Satisfaction of Sinking Fund Payments With Securities.
------------------------------------------------------
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities will be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment will be reduced
accordingly.
SECTION 1303. Redemption of Securities for Sinking Fund.
------------------------------------------
Not less than 60 calendar days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, that is to be satisfied by payment of cash and the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1302 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 calendar days before each such
sinking fund payment date, the Trustee will select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1202 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1202. Such notice
having been duly given, the redemption of such Securities will be made upon the
terms and in the manner stated in Sections 1204 and 1205.
--------------------
51
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
GEORGIA GULF CORPORATION
By: /s/ EDWARD A. SCHMITT
--------------------------------------
President and CEO
Attest:
/s/ JOEL I. BEERMAN
- ---------------------------------
Vice President and Secretary
LASALLE NATIONAL BANK
By: /s/ LAURA H. MACKEY
--------------------------------------
Assistant Vice President
Attest:
/s/ ERIK R. BENSON
- ---------------------------------
Assistant Secretary
52
<PAGE>
STATE OF GEORGIA ) ss.:
COUNTY OF DEKALB )
On the 1st day of July, 1998, before me personally came
Joel I. Beerman, to me known, who, being by me duly sworn, did
depose and say that he is Vice President and Secretary of
Georgia Gulf Corporation, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Lynn Normand
---------------------------------
STATE OF ILLINOIS ) ss.:
COUNTY OF COOK )
On the 1st day of July, 1998, before me personally came
Laura H. Mackey, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
Assistant Vice President of LaSalle National Bank,
one of the corporations described in and which executed the foregoing
instrument; that [he -- she] knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that [he -- she]
signed [his -- her] name thereto by like authority.
/s/ Vernita L. Anderson
---------------------------------
53
<PAGE>
EXHIBIT 5
JONES, DAY, REAVIS & POGUE
303 Peachtree Street, N.E.
3500 SunTrust Plaza
Atlanta, Georgia 30308
July 1, 1998
Georgia Gulf Corporation
400 Perimeter Center Terrace
Suite 595
Atlanta, Georgia 30346
Re: Registration Statement on Form S-3 of up to $200,000,000
of Securities of Georgia Gulf Corporation
Ladies and Gentlemen:
We are acting as counsel to Georgia Gulf Corporation, a Delaware
corporation (the "Company"), in connection with the authorization of the
possible issuance and sale from time to time by the Company of certain debt
securities of the Company (the "Securities") pursuant to the terms of an
Indenture, dated as of July 1, 1998 (the "Indenture"), between the Company
and LaSalle National Bank, as Trustee (the "Trustee"), in each case as
contemplated by the Company's Registration Statement on Form S-3 (File No.
333-57301) (the "Registration Statement"). Except as otherwise defined
herein, capitalized terms that are defined in the Registration Statement are
used herein as so defined.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and
on the assumptions set forth below, we are of the opinion that:
The Securities, when (a) duly executed by the Company and authenticated
by the Trustee in accordance with the provisions of the Indenture and issued
and sold in accordance with the Registration Statement and (b) delivered to
the purchaser or purchasers thereof upon receipt by the Company of such
lawful consideration therefor as the Company's Board of Directors (or a duly
authorized committee thereof or a duly authorized officer of the Company) may
determine, will be valid and binding obligations of the Company.
In rendering the foregoing opinion, we have assumed that (i) the
definitive terms of each series of the Securities not presently provided for
in the Indenture will have been established in accordance with all applicable
provisions of law, the Indenture, and the authorizing resolutions of the
Company's Board of Directors, and reflected in appropriate documentation
approved by us and, if applicable, duly executed and delivered by the Company
and any other appropriate party, (ii) the interest rate on the Securities
will not be higher than the maximum lawful rate permitted from time to time
under applicable law, (iii) the Registration Statement, and any amendments
thereto, will have become effective, (iv) a Prospectus Supplement describing
each series of Securities offered pursuant to the Registration Statement will
have been filed with the Commission, (v) the resolutions authorizing the
Company to register, offer, sell, and issue the Securities
<PAGE>
will remain in effect and unchanged at all times during which the Securities
are offered, sold, or issued by the Company, and (vi) all Securities will be
issued in compliance with applicable federal and state securities laws.
In rendering the foregoing opinion, we have relied as to certain factual
matters upon certificates of officers of the Company, and we have not
independently checked or verified the accuracy of the statements contained
therein. In rendering the foregoing opinion, our examination of matters of
law has been limited to the laws of the State of Georgia, the General
Corporation Law of the State of Delaware, and the federal laws of the United
States of America, as in effect on the date hereof.
We understand that prior to offering for sale any Securities you will
advise us in writing of the terms of such offering and of such Securities,
will afford us an opportunity to review the operative documents (including
the applicable Prospectus Supplement) pursuant to which the Securities are to
be offered, sold, and issued, and will file as an exhibit to the
Registration Statement such supplement or amendment to this opinion (if any)
as we may reasonably consider necessary or appropriate by reason of the terms
of such Securities or any changes in the Company's capital structure or other
pertinent circumstances.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to us in the Prospectus under the
caption "Validity of Securities."
Very truly yours,
/s/ JONES, DAY, REAVIS & POGUE
------------------------------
JONES, DAY, REAVIS & POGUE
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 12,
1998 included in Georgia Gulf Corporation's Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
July 2, 1998
