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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 18, 1998
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Cytec Industries Inc.
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(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 1-12372 22-3268660
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<S> <C> <C>
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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Five Garret Mountain Plaza
West Paterson, NJ 07424
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 973-357-3100
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(Former name or former address, if changed since last report.)
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Item 5. Other Events
On March 18, 1998, Cytec Industries Inc. (the "Company") sold an
aggregate of $200,000,000 principal amount of senior debt securities, consisting
of (i) $100,000,000 principal amount of 6.50% Notes due March 15, 2003 and (ii)
$100,000,000 principal amount of 6.75% Notes due March 15, 2008, in a public
offering co-managed by SBC Warburg Dillon Read Inc., Merrill Lynch & Co., Morgan
Stanley Dean Witter and Salomon Smith Barney. The Company received an aggregate
of approximately $198.2 million in proceeds from such sale before deducting
expenses associated with such sale.
Item 7. Financial Statements and Exhibits
Exhibits:
1. Underwriting Agreement, dated as of March 13, 1998 between the
Registrant and SBC Warburg Dillon Read.,Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated
and Salomon Brothers Inc., as representatives of the underwriters
named therein.
4.1 Indenture, dated as of March 15, 1998 between the Registrant and
PNC Bank, National Association, as Trustee.
4.2 6.50% Global Note due March 15, 2003.
4.3 6.75% Global Note due March 15, 2008.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Cytec Industries Inc.
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(Registrant)
Date March 18, 1998 By: /s/ J.P.Cronin
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J. P. Cronin
Executive Vice President and
Chief Financial Officer
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Exhibit 1
EXECUTION COPY
CYTEC INDUSTRIES INC.
Underwriting Agreement
March 13, 1998
New York, New York
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Cytec Industries Inc., a Delaware corporation (the "Company"), proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the "Securities"), to
be issued under an indenture (the "Indenture") dated as of March 15, 1998,
between the Company and PNC Bank, National Association, as trustee (the
"Trustee"). The terms of such sales, pursuant to this Agreement, are described
in Schedule I hereto. If the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
-------------------------------
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(1) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
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4
(1) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so amended, has
become effective. The offering of the Securities is a Delayed Offering
and, although the Basic Prospectus may not include all the information
with respect to the Securities and the offering thereof required by
the Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus is responsive to all the disclosure
requirements of the Act and the rules and regulations thereunder as of
the Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement relating to
the Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. The Company shall not file a Rule 462(b) Registration
Statement without the consent of the Representatives.
(2) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness of
such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In the
case of clause (x), the Company has included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, with respect to the Securities and the
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5
offering thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. The Company shall not file a
Rule 462(b) Registration Statement without the consent of the
Representatives.
(2) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (with respect to documents incorporated by
reference in the Registration Statement) and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules thereunder;
and, on the Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
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representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives expressly
and specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(3) The terms which follow, when used in this Agreement, shall have
the meanings indicated. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall mean
the prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of a
Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the Basic
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6
Prospectus which describes the Securities and the offering thereof and is
used prior to filing of the Final Prospectus. "Final Prospectus" shall mean
the prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule
430A", "Rule 462(b)" and "Regulation S-K" refer to such rules or regulation
under the Act. "Rule 430A Information" means information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the Registration Statement. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to
the securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a Non-
Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
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7
(4) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission.
(5) Except as described in the Final Prospectus, since the respective
dates as of which information is given in the Registration Statement and
the Final Prospectus, there has not been (i) any increase in the long-term
debt of the Company and its consolidated subsidiaries in an amount in
excess of $10,000,000, other than indebtedness incurred to pay obligations
under the rate lock agreements of the Company described in the Final
Prospectus or (ii) except as set forth or contemplated in the Final
Prospectus, any material adverse change in or affecting the general
affairs, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(6) The Company and each of Cytec Fiberite Inc., Cytec Global
Holdings Inc. and Cytec Technology Corp. (the "Material Subsidiaries") have
been duly incorporated and are validly existing as corporations in good
standing under the laws of the State of Delaware, with corporate power and
authority to own their properties and conduct their business as described
in the Final Prospectus, to execute and deliver this Agreement, any Delayed
Delivery Contracts and the Indenture and to issue and sell the Securities
as herein contemplated and have been duly qualified as foreign corporations
for the transaction of business and are in good standing under the laws of
each other jurisdiction in which they own or lease properties or conduct
any business so as to require such qualification, except where failure to
be so qualified would not reasonably be expected to have a Material Adverse
Effect.
(7) The Company and each of its Material Subsidiaries have good title
to all manufacturing plants or facilities (together with the land upon
which it is erected and fixtures comprising a part thereof) located in the
United States of America (excluding territories and possessions) the net
book value (as defined in the Indenture) of which exceeds 1.5% of
Consolidated Net Tangible Assets (as defined in the Indenture), except any
such plant or facility which is a pollution control or other facility
financed by obligations issued by a state or local governmental unit and
described in Sections 141(a), 142(a)(5), 142(a)(6), 142(a)(10) or 144(a) of
the Internal Revenue Code of 1986, as amended (or any successor provision
thereof), or which in the opinion of the Board of Directors of the Company
is not of material importance to the total business conducted by the
Company and its subsidiaries as a whole (each, a "Principal Property" and
collectively, the "Principal Properties"), in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Final Prospectus or such as do not materially affect the value of such
Principal Property and do not interfere with the use made of such Principal
Property by the Company and its Material Subsidiaries, except where such
impairment or interference would not reasonably be expected to have a
Material Adverse Effect; and the Principal Properties held under lease by
the Company and the Material Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made of such Principal
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8
Property by the Company and the Material Subsidiaries except where such
interference would not reasonably be expected to have a Material Adverse
Effect.
(8) The execution, delivery and performance of this Agreement, any
Delayed Delivery Contracts and the Indenture, the issuance and sale of the
Securities and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument of
which the Company or any of the Material Subsidiaries is a party or by
which the Company or any of the Material Subsidiaries is bound or to which
any of the property or assets of the Company or any of the Material
Subsidiaries is subject, except where such breach or violation would not
reasonably be expected to have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of the Material Subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(9) Neither the Company nor any of the Material Subsidiaries is (i)
in violation of its Certificate of Incorporation or By-laws or (ii) in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, where such
default would be reasonably likely to have a Material Adverse Effect.
(10) The Indenture has been duly authorized by the Company and when
executed and delivered by the Company will be a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(11) The Securities, when issued in accordance with this Agreement and
the Indenture, will have been duly authorized by the Company and when
executed and delivered by the Company will constitute legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity.
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9
(12) The Delayed Delivery Contracts, if any, have been duly authorized
by the Company and when executed and delivered by the Company will
constitute legal, valid and binding obligations of the Company enforceable
in accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general principles of
equity.
(13) This Agreement has been duly authorized, executed and delivered
by the Company.
(14) The Securities, the Delayed Delivery Contracts, if any, and the
Indenture conform in all material respects to the description thereof
contained in the Registration Statement and Final Prospectus.
(15) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(16) All legal or governmental proceedings, contracts or documents of
a character required to be described in the Registration Statement or the
Final Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required.
(17) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending to which the Company
or any of the Material Subsidiaries is a party or of which any property of
the Company or any of the Material Subsidiaries is the subject which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect; and, to the best of the Company's knowledge, there
are no proceedings threatened or contemplated by governmental authorities
or threatened by others which would reasonably be expected to have a
Material Adverse Effect.
(18) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Final Prospectus present
fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of
operations and the consolidated cash flows of the Company and its
subsidiaries for the periods specified; such financial statements, except
as described therein, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved.
(19) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(20) Neither the Company nor any of its affiliates as defined within
Section 517.021 of the Florida Statutes does business with the government
of
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10
Cuba or with any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes.
(21) Other than as set forth or contemplated in the Final Prospectus,
each of the Company and the Material Subsidiaries are in material
compliance with all applicable federal, state and local environmental laws
and regulations, including those applicable to emissions to the
environment, waste management and waste disposal (collectively,
"Environmental Laws"), except for such noncompliance as would not, to the
best knowledge of the Company, reasonably be expected to have a Material
Adverse Effect.
(22) Other than as set forth or contemplated in the Final Prospectus,
(i) there is no claim under any Environmental Law, including common law,
pending or, to the best knowledge of the Company, threatened or
contemplated against the Company or the Material Subsidiaries (an
"Environmental Claim") which would reasonably be expected to have a
Material Adverse Effect and (ii) to the knowledge of the Company, under
applicable law, there are no past or present actions, activities,
circumstances, events or incidents, including releases of any material into
the environment, that could form the basis of any Environmental Claim
against the Company or the Material Subsidiaries which would reasonably be
expected to have a Material Adverse Effect.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
------------------
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of such Securities pursuant to delayed delivery
arrangements, the respective principal amount of such Securities to be purchased
by the Underwriters shall be as set forth in Schedule II hereto less the
respective principal amount of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which such
Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I
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11
hereto and the aggregate principal amount of Contract Securities may not exceed
the maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of any Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount equal to the total principal amount of
Contract Securities multiplied by a fraction, the numerator of which is the
principal amount of Securities set forth opposite the name of such Underwriter
and the denominator of which is the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
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by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
---------------------
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives, acting jointly and
without regard to any agreement among underwriters, and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in same day funds or
as otherwise may be agreed as set forth in Schedule I hereto. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
<PAGE>
12
4. Agreements. The Company agrees with the several Underwriters that:
-----------
(1) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object on a timely
basis. Subject to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (iii)
when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, or
any document that would be incorporated therein by reference shall have
been filed, (iv) of any request by the Commission at any time when a
prospectus relating to the Securities is required to be delivered under the
Act for any amendment of the Registration Statement or supplement to the
Final Prospectus or for any additional information relating to the offering
of the Securities, (v) of the issuance by the Commission at any time when a
prospectus relating to the Securities is required to be delivered under the
Act of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatened institution of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatened initiation of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(2) If, at any time, prior to the completion of the distribution of
the Securities by the Underwriters (notification of completion to be sent
to the Company within 24 hours of such completion), when a prospectus
relating to the Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary, in the opinion of counsel for the Company, to amend the
Registration Statement or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) advise the Underwriters promptly of the happening of such
event, (ii) prepare and file with the Commission, at the
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13
Company's expense, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or effect such compliance and (iii) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(3) As soon as practicable, but in any event not later than eighteen
months after the Effective Date, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(4) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement and
documents incorporated by reference therein (not including the exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the offering.
(5) The Company will arrange for the qualification of the Securities
offered by the Company for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities, will arrange
for the determination of the legality of the Securities for purchase by
institutional investors and will pay the fee of the National Association of
Securities Dealers, Inc., in connection with its review, if any, of the
offering; provided, however, that the Company shall not be required to (i)
-------- -------
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 4(e), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject.
(6) The Company will furnish to the Representatives upon request,
without charge, for so long as any of the Securities shall remain
outstanding, up to a period of one year from the date hereof, (i) copies of
any reports or other communications which the Company shall send to its
stockholders as a class and (ii) copies of all annual, quarterly and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar form as may be designated by the Commission and copies
of any other reports or financial statements furnished to or filed with any
national securities exchange on which any class of securities of the
Company is listed.
(7) The Company will furnish to the Representatives as early as
practicable prior to the time of purchase, but no later than two business
days prior thereto, a copy of the latest available unaudited interim
consolidated financial statements, if any, of the Company and its
subsidiaries which have been read by the Company's independent certified
public accountants, as stated in their letter to be furnished pursuant to
Section 5(f) of this Agreement.
<PAGE>
15
(8) The Company agrees to apply the net proceeds from the sale of the
Securities in the manner set forth under the caption "Use of Proceeds" in
the Final Prospectus.
(9) The Company agrees to pay all expenses, fees and taxes incident
to the performance of its obligations under this Agreement, including,
without limitation, (i) the preparation and filing of the Registration
Statement, each related preliminary prospectus, the Final Prospectus, any
documents incorporated by reference therein at or after the date thereof
and any amendments or supplements thereto, and the printing and furnishing
of copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the preparation, issuance, execution,
authentication and delivery of any engraved Securities, (iii) the
qualification of the Securities for offering and sale under state laws and
the determination of their eligibility for investment under state law as
aforesaid (including the legal fees and filing fees and other disbursements
of counsel for the Underwriters) and the printing and furnishing of copies
of any blue sky surveys or legal investment surveys to the Underwriters and
to dealers, (iv) any listing of the Securities on any securities exchange
and any registration thereof under the Exchange Act, (v) any fees payable
to investment rating agencies with respect to the Securities, (vi) any
filing for review of the public offering of the Securities by the National
Association of Securities Dealers, Inc. and (vii) the fees and
disbursements of the Trustee. It is understood, however, that, except as
provided in (iii) above and Section 6 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel, any
transfer taxes, and any advertising expenses connected with any offers they
may make.
(10) The Company agrees to furnish to you, before filing with the
Commission subsequent to the effective date of the Registration Statement
and during the period referred to in paragraph (b) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(11) The Company agrees to such other provisions as may be set forth
in Schedule I hereto.
5. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof and to the following additional conditions:
(1) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New
<PAGE>
16
York City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and at the Closing Date
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(2) The Company shall have furnished to the Representatives the
opinion of Edward F. Jackman, Vice President, General Counsel and Secretary
of the Company, dated the Closing Date, to the effect that:
(1) each of the Company and the Material Subsidiaries has been
duly incorporated and is validly existing and, based solely on a
certificate of good standing, is in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus, and, based solely on
certificates of good standing or other similar certificates of public
officials and officers of the Company, is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each U.S. jurisdiction which requires such qualification
wherein it owns or leases a manufacturing facility and where its
failure to so qualify would reasonably be expected to have a Material
Adverse Effect;
(2) all outstanding shares of capital stock of the Material
Subsidiaries are owned by the Company either directly or by wholly
owned subsidiaries free and clear of any perfected security interest;
(3) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally and subject to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless
of whether in a proceeding at law or in equity); and the Securities
have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the case
of any Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms
(subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally and subject to general
principles of equity, including, without limitation,
<PAGE>
17
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding at law or in equity);
(4) to the knowledge of such counsel, there is no pending or
threatened suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
the Material Subsidiaries that would reasonably be expected to have a
Material Adverse Effect and is of a character required to be disclosed
in the Registration Statement which is not disclosed in the Final
Prospectus and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit to the Registration
Statement, which is not described or filed as required and which
absence to be so described or filed would reasonably be expected to
have a Material Adverse Effect and the statements included in the Form
10-K for the fiscal year ended December 31, 1997, incorporated by
reference in the Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company fairly
summarize such matters;
(5) this Agreement has been duly authorized, executed and
delivered by the Company;
(6) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming that
they have been duly authorized, executed and delivered by the
purchasers thereunder) are valid and binding agreements of the
Company;
(7) no consent, approval, authorization, order, registration or
qualification with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation
of the transactions contemplated herein or in any Delayed Delivery
Contracts, except the registration under the Act of the Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(8) the execution, delivery and performance of this Agreement,
any Delayed Delivery Contracts and the Indenture, the issue and sale
of the Securities and the consummation of the transactions herein
contemplated will not conflict with, result in a breach or violation
of any of the terms or provisions or constitute a default under the
Certificate of Incorporation or by-laws of the Company or the terms of
any indenture, loan agreement or other material agreement or
instrument known to such counsel (including, but not limited to,
mortgages and deeds of trust) to which the Company or any of the
Material Subsidiaries is a party or bound or to which any of the
property or assets of the Company or any of the Material Subsidiaries
is subject, except where such breach or violation
<PAGE>
18
would not reasonably be expected to have a Material Adverse Effect, or
contravene any law, rule or regulation of the United States of America
or the State of New York or the General Corporation Law of the State
of Delaware or any judgment, order or decree known to such counsel to
be applicable to the Company or any of the Material Subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any of the
Material Subsidiaries;
(9) to the best of such counsel's knowledge, neither the Company
nor any of the Material Subsidiaries is in default in the performance
or observance of any material obligation, agreement covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
except where such default would not reasonably be expected to have a
Material Adverse Effect;
(10) the Form 10-K for the fiscal year ended December 31, 1997
and the Form 8-K dated September 30, 1997 incorporated by reference in
the Registration Statement and the Final Prospectus, when they were
filed (or, if an amendment with respect to any such document was
filed, when such amendment was filed), complied as to form in all
material respects with the Exchange Act (except as to the financial
statements and schedules and other financial and statistical data
contained or incorporated by reference therein as to which such
counsel need express no opinion);
(11) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement; and
(12) such other legal opinions with respect to the Securities as
may be set forth in Schedule I hereto.
Such counsel shall state that the Registration Statement has become
effective under the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
threatened.
Such counsel shall also state that such counsel had no reason to
believe that as of the Effective Date the Registration Statement contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that as of the
Closing Date the Final Prospectus includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading and the Registration Statement and
<PAGE>
19
the Final Prospectus as amended or supplemented, and any further amendments
and supplements thereto made by the Company prior to the Closing Date
(other than the financial statements, including the notes thereto and
related schedules, and other financial data and accounting information
contained or incorporated by reference therein, as to which such counsel
need express no opinion), appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
rules and regulations thereunder.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of New York or the United States, to the extent such
counsel deems proper and specifies in such opinion, upon the opinion of
other counsel of good standing whom such counsel believes to be reliable
and who are reasonably satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(3) The Company shall have furnished to the Representatives the
opinion of Cravath, Swaine & Moore, counsel for the Company, dated the
Closing Date, to the effect that:
(1) based solely on a certificate from the Secretary of State of
the State of Delaware, the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with full corporate power and authority under
such laws to own its properties and conduct its business as described
in the Final Prospectus;
(2) the statements set forth in the Final Prospectus under the
caption "Description of Notes," insofar as such statements constitute
a summary of the documents referred to therein, constitute fair
summaries of such documents. Securities conform in all material
respects to the description thereof contained in the Registration
Statement and Final Prospectus;
(3) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally from time to time in
effect and subject to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether in a proceeding at law or in
equity); and the Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the
<PAGE>
20
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms (subject to applicable
bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium or other laws now or hereafter in effect relating to
creditors' rights generally from time to time in effect and subject to
general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding at law or in equity);
(4) this Agreement has been duly authorized, executed and
delivered by the Company;
(5) the Registration Statement, at the time the Registration
Statement became effective, and the Final Prospectus, as of the
Closing Date (in each case except the financial statements and other
information of a statistical, accounting or financial nature included
therein (except the Statement of Eligibility (Form T-1) included as an
exhibit to the Registration Statement, as to which we do not express
any view), were appropriately responsive in all material respects to
the requirements of the Act and the Trust Indenture Act;
(6) no authorization, approval or other action by, and no notice
to, consent of, order of, or filing with, any United States Federal,
New York or, to the extent required under the General Corporation Law
of the State of Delaware, Delaware governmental authority or
regulatory body is required for the consummation of the transactions
contemplated by this Agreement, except such as have been obtained
under the Act or the Trust Indenture Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters;
(7) the Indenture has been duly qualified under the Trust
Indenture Act; and
(8) such other legal opinions with respect to the Securities as
may be set forth in Schedule I hereto.
Such counsel shall state that the Registration Statement has become
effective under the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
threatened.
Such counsel shall also state that they have no reason to believe that
as of the Effective Date the Registration Statement (except the financial
statements and
<PAGE>
21
other information of an accounting or financial nature included therein, or
incorporated by reference therein or omitted therefrom, and the Statement
of Eligibility on Form T-1 included as an exhibit to the Registration
Statement, as to which such counsel need express no view) contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that as of the
Closing Date the Final Prospectus includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of New York or the United States, to the extent such
counsel deems proper and specifies in such opinion, upon the opinion of
other counsel of good standing whom such counsel believes to be reliable
and who are reasonably satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials.
References to the Final Prospectus in this paragraph (c) include any
supplements thereto at the Closing Date.
(4) The Representatives shall have received from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(5) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the chief financial officer of the Company, dated the Closing
Date, with respect to the matters set forth in (g) below and to the effect
that:
(1) to such person's knowledge, the representations and
warranties of the Company in this Agreement are true and correct in
all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied in
all material respects with all the agreements and satisfied in all
material respects all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; and
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to such person's knowledge,
threatened.
<PAGE>
22
(6) At the Execution Time, KPMG Peat Marwick LLP shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of
the Execution Time, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(1) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(2) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; a
reading of the minutes of the meetings of the stockholders, directors
and the executive, audit, compensation and pension committees of the
Company and its subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects with
applicable accounting requirements of the Act and the Exchange
Act and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; or said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement
and the Final Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company or any other
changes in any balance sheet items as the Representatives may
reasonably request as compared with the amounts shown on the most
recent
<PAGE>
23
consolidated balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
included or incorporated in the Registration Statement and the
Final Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding year
or the preceding quarter in net sales, earnings from operations,
earnings before income taxes or in total or per share amounts of
net earnings of the Company and its subsidiaries available for
common stockholders or any other income statement items as the
Representatives may reasonably request, except in all instances
for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated in the Registration
Statement and the Final Prospectus;
(3) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(4) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement or the Final Prospectus, on
the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures, inquiries of
certain officials of the Company and the acquired company who have
responsibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which
<PAGE>
24
caused them to believe that the pro forma financial statements do not
comply in form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of such statements.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Closing
Date, KPMG Peat Marwick LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(7) (i) Neither the Company nor any of the Material Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Final Prospectus
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Final Prospectus, and (ii) since the
respective dates as of which information is given in the Final Prospectus
there shall not have been any increase in the long-term debt of the Company
and its consolidated subsidiaries in an amount in excess of $10,000,000
other than indebtedness incurred to pay obligations under the rate lock
agreements of the Company described in the Final Prospectus or any change
in or affecting the general affairs, financial position, stockholder's
equity or results of operations of the Company and its subsidiaries, in
each case otherwise than as set forth or contemplated in the Final
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered at the time of purchase on the
terms and in the manner contemplated in the Final Prospectus.
(8) Subsequent to the Execution Time, there shall not have occurred
any downgrade in the rating of any securities of or guaranteed by the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g)(2) under the Act) and no such
organization shall have publicly announced that is has under surveillance
or review, with possible negative implications, its rating of any
securities of or guaranteed by the Company.
(9) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(10) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
<PAGE>
25
(11) The Company shall have performed such of its obligations under
this Agreement as are to be performed by the terms hereof at or before the
time of purchase.
(12) The Company agrees to such other conditions as may be set forth
in Schedule I hereto.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives and such
cancelation shall be without liability of any party to any other party. Notice
of such cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the Company, at
Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied or because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representatives upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of one Underwriters' counsel) approved by the
Representatives that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities (including the reasonable cost of investigation),
joint or several, to which each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment or post-effective amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred
<PAGE>
26
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company will not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly and specifically
for inclusion therein or that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee and (ii) such indemnity with respect to any
untrue statement or omission of a material fact made in the Basic Prospectus or
any Preliminary Final Prospectus, or in any amendment thereof or supplement
thereto, shall not inure to the benefit of any Underwriter (or any of the
directors, officers, employees and agents of such Underwriter or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such Basic
Prospectus or Preliminary Final Prospectus, or in such amendment thereof or
supplement thereto, was corrected in the Final Prospectus (or the Final
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives expressly and specifically for
inclusion in the documents referred to in the foregoing indemnity, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint
<PAGE>
27
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party; provided, however, that in any event the indemnifying
-------- -------
party shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, representing the indemnified parties who are
parties to such action or actions). An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
An indemnifying party shall not be liable under this Section 7 to any
indemnified party regarding any settlement or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to by such indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
-------- -------
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by
<PAGE>
28
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d). The obligations of the
Underwriters shall be several and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall fail on
--------------------------
the Closing Date to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
five business days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject to termination in the
------------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) there
shall have occurred a material suspension or limitation in trading in securities
generally on the
<PAGE>
29
New York Stock Exchange, (ii) there shall have occurred a material suspension or
limitation in trading in the Company's securities on the New York Stock
Exchange, (iii) there shall not have occurred any downgrade in the rating of any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)(2)
under the Act) and no such organization shall have publicly announced that is
has under surveillance or review, with possible negative implications, its
rating of any securities of or guaranteed by the Company, (iv) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (v) there shall have occurred any materially adverse change in
the financial markets or any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the
reasonable judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto). If this Agreement is
terminated pursuant to this Section, such termination shall be without liability
of any party to any other party.
10. Representations and Indemnities to Survive. The respective agreements,
-------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
--------
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Five Garret Mountain Plaza, West Paterson, NJ 07424,
attention of the Secretary.
12. Successors. This Agreement will inure to the benefit of and be binding
-----------
upon the parties hereto, and the officers and directors and controlling persons
referred to in Section 7 hereof, and their respective successors, assigns,
executors and administrators. No other person, partnership, association, or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
---------------
accordance with the laws of the State of New York.
14. Business Day. For purposes of this Agreement, "business day" means any
-------------
day on which the New York Stock Exchange is open for trading.
15. Miscellaneous. On December 8, 1997, Swiss Bank Corporation, of which
--------------
SBC Warburg Dillon Read is an indirect wholly owned subsidiary, announced its
intention to merge with Union Bank of Switzerland. References in this document
to
<PAGE>
30
Swiss Bank Corporation include references to its successor entity following
completion of the merger.
References to the parties include references to their successors,
including, without limitation, an entity which assumes the rights and
obligations of the relevant party by operation of the law of the jurisdiction of
incorporation or domicile of such party.
16. Counterparts. This Agreement may be signed in any number of
-------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
<PAGE>
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
CYTEC INDUSTRIES INC.,
By:/s/ J. P. Cronin
-----------------
Name: J. P. Cronin
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
SBC Warburg Dillon Read Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
By: SBC WARBURG DILLON READ INC.
By:
/s/ Andrew Horrocks
------------------------
Name: Andrew Horrocks
Title: Director
By:
/s/ Brian J. Hanson
------------------------
Name: Brian J. Hanson
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
32
SCHEDULE I
Underwriting Agreement dated March 13, 1998
Registration Statement No. 333-3808
Representative(s): SBC Warburg Dillon Read Inc., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
Title, Purchase Price and Description of Securities:
Title: 6.50% Notes due March 15, 2003.
Principal Amount: $100,000,000.
Interest Rate: 6.50% per annum, commencing March 18,
1998, payable semiannually in arrears on
the dates set forth below, to holders of
record on the preceding March 1 and
September 1, as the case may be.
Interest Payment Dates: March 15 and September 15.
Date of Maturity: March 15, 2003.
Purchase Price (include accrued
interest or amortization, if
any): 99.298% principal amount plus accrued
interest, if any, from March 18, 1998.
Sinking Fund Provisions: None.
Redemption Provisions: The Securities are redeemable, in whole
or in part, at the option of the Company
at any time at a redemption price equal
to the greater of (i) 100% of the
principal amount of the Securities being
redeemed or (ii) as determined by a
Quotation Agent, the sum of the present
values of the remaining scheduled
payments of principal and interest on
the Securities being redeemed (not
including any portion of such payments
of interest accrued as of the date of
<PAGE>
33
redemption) on a semiannual basis
(assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted
Treasury Rate plus 12.5 basis points
plus accrued interest thereon to the
date of redemption.
Other Provisions: None.
Title: 6.75% Notes due March 15, 2008.
Principal Amount: $100,000,000.
Interest Rate: 6.75% per annum, commencing March 18,
1998, payable semiannually in arrears on
the dates set forth below, to holders of
record on the preceding March 1 and
September 1, as the case may be.
Interest Payment Dates: March 15 and September 15.
Date of Maturity: March 15, 2008.
Purchase Price (include accrued
interest or amortization, if
any): 98.904% of principal amount plus accrued
interest, if any, from March 18, 1998.
Sinking Fund Provisions: None.
Redemption Provisions: The Securities are redeemable, in whole
or in part, at the option of the Company
at any time at a redemption price equal
to the greater of (i) 100% of the
principal amount of the Securities being
redeemed or (ii) as determined by a
Quotation Agent, the sum of the present
values of the remaining scheduled
payments of principal and interest on
the Securities being redeemed (not
including any portion of such payments
of interest accrued as of the date of
redemption) on a semiannual basis
(assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted
Treasury Rate plus 15 basis points plus
accrued interest thereon to the date of
redemption.
Other Provisions: None.
<PAGE>
34
Closing Date, Time and Location: March 18, 1998, 9:30 a.m., at the
offices of Cravath, Swaine & Moore,
Worldwide Plaza, 825 Eighth Avenue.
Method of Payment for Underwriters' Securities: Wire transfer in same-day
funds.
Type of Offering: Delayed Offering.
Delayed Delivery Arrangements: None.
Additional provisions pursuant to Section 4(k): None.
Additional opinions pursuant to Section 5(b)(xii) or 5(c)(viii): None.
Modification of items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f) at the Execution Time: None.
Additional conditions pursuant to Section 5(l): None.
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Underwriter Principal Principal
----------- Amount of 6.50% Amount of 6.75%
Notes to Notes to
be Purchased be Purchased
------------------- -------------------
<S> <C> <C>
SBC Warburg Dillon Read Inc................ $ 23,500,000 $ 23,500,000
Merrill Lynch, Pierce, Fenner & Smith, 23,500,000 23,500,000
Incorporated...............................
Morgan Stanley & Co. Incorporated.......... 23,500,000 23,500,000
Salomon Brothers Inc....................... 23,500,000 23,500,000
Credit Lyonnais Securities (USA) Inc....... 3,000,000 3,000,000
First Union Capital Markets, Division of
Wheat First Securities Inc................. 3,000,000 3,000,000
$100,000,000 $100,000,000
Total...................................... ============ ============
</TABLE>
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
SBC Warburg Dillon Read Inc.
535 Madison Avenue
New York, NY 10022
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, NY 10281
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Salomon Brothers Inc
Seven World Trade Center
30th Floor
New York, NY 10048
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Cytec Industries Inc. (the
"Company"), and the Company agrees to sell to the undersigned, on March ,
1998, (the "Delivery Date"), $ principal amount of the Company's
(the "Securities") offered by the Company's Prospectus dated , 19 ,
and related Prospectus Supplement dated March , 1998, receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus [accrued interest] [amortization of original issue
discount], if any, thereon from , 19 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 AM, New York City time, on the Delivery Date to or upon the
order of
<PAGE>
the Company in New York Clearing House (next day) funds, at your office or at
such other place as shall be agreed between the Company and the undersigned,
upon delivery to the undersigned of the Securities in definitive fully
registered form and in such authorized denominations and registered in such
names as the undersigned may request by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date. If no request is received, the Securities will be registered in
the name of the undersigned and issued in a denomination equal to the aggregate
principal amount of Securities to be purchased by the undersigned on the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
<PAGE>
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
.............................................
(Name of Purchaser)
By
..........................................
Name:
Title:
..........................................
(Address)
Accepted:
CYTEC INDUSTRIES INC.,
By
.....................
Name:
Title:
<PAGE>
Exhibit 4.1
EXECUTION COPY
______________________________________________________________________
________________________________________________________________________________
CYTEC INDUSTRIES INC.
and
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
__________________
INDENTURE
Dated as of March 15, 1998
______________________
Debt Securities
_____________________________________________________________________
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
Page
----
<S> <C>
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Other Definitions.......................................... 8
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act............................................ 8
SECTION 1.04. Rules of Construction...................................... 8
ARTICLE II
The Securities
--------------
SECTION 2.01. Forms Generally............................................ 9
SECTION 2.02. Form of Trustee's Certificate
of Authentication........................................ 9
SECTION 2.03. Principal Amount; Issuable in
Series................................................... 10
SECTION 2.04. Execution of Securities.................................... 14
SECTION 2.05. Authentication and Delivery of
Securities............................................... 14
SECTION 2.06. Denomination of Securities................................. 16
SECTION 2.07. Registrar and Paying Agent................................. 16
SECTION 2.08. Paying Agent To Hold Money in
Trust.................................................... 17
SECTION 2.09. Lists of Holders........................................... 17
SECTION 2.10. Transfer and Exchange...................................... 17
SECTION 2.11. Replacement Securities..................................... 18
SECTION 2.12. Outstanding Securities..................................... 19
SECTION 2.13. Temporary Securities....................................... 19
SECTION 2.14. Cancelation................................................ 19
SECTION 2.15. Payment of Interest; Interest
Rights Preserved......................................... 20
SECTION 2.16. Securities Denominated in Foreign
Currencies............................................... 20
SECTION 2.17. Wire Transfers............................................. 21
SECTION 2.18. Securities Issuable in the Form
of a Global Security..................................... 21
SECTION 2.19. Medium Term Securities..................................... 24
SECTION 2.20. Defaulted Interest......................................... 26
SECTION 2.21. Judgments.................................................. 26
</TABLE>
ARTICLE III
Redemption of Securities
------------------------
<PAGE>
Contents, p.6
<TABLE>
<CAPTION>
<S> <C>
SECTION 3.01. Applicability of Article................................... 27
SECTION 3.02. Notice of Redemption; Selection
of Securities............................................ 27
SECTION 3.03. Payment of Securities Called
for Redemption........................................... 29
SECTION 3.04. Mandatory and Optional Sinking
Funds.................................................... 30
SECTION 3.05. Redemption of Securities for
Sinking Fund..............................................30
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Securities...................................... 32
SECTION 4.02. SEC Reports................................................ 33
SECTION 4.03. Limitation on Liens........................................ 33
SECTION 4.04. Limitation on Sale and
Leaseback................................................ 35
SECTION 4.05. Payment of Taxes and Other
Claims................................................... 35
SECTION 4.06. Corporate Existence........................................ 36
SECTION 4.07. Compliance Certificate..................................... 36
SECTION 4.08. Further Instruments and Acts............................... 36
ARTICLE V
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer
Assets ................................................... 37
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default.......................................... 37
SECTION 6.02. Acceleration............................................... 39
SECTION 6.03. Other Remedies............................................. 40
SECTION 6.04. Waiver of Past Defaults.................................... 40
SECTION 6.05. Control by Majority........................................ 41
SECTION 6.06. Limitation on Suits........................................ 41
SECTION 6.07. Rights of Holders to Receive
Payment.................................................. 42
SECTION 6.08. Collection Suit by Trustee................................. 42
SECTION 6.09. Trustee May File Proofs of
Claim.................................................... 42
SECTION 6.10. Priorities................................................. 43
SECTION 6.11. Undertaking for Costs...................................... 43
SECTION 6.12. Waiver of Stay or Extension
Laws..................................................... 43
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VII Contents, p.7
Trustee
-------
<S> <C>
SECTION 7.01. Duties of Trustee.......................................... 44
SECTION 7.02. Rights of Trustee.......................................... 45
SECTION 7.03. Individual Rights of Trustee............................... 46
SECTION 7.04. Trustee's Disclaimer....................................... 46
SECTION 7.05. Notice of Defaults......................................... 46
SECTION 7.06. Reports by Trustee to Holders.............................. 46
SECTION 7.07. Compensation and Indemnity................................. 47
SECTION 7.08. Replacement of Trustee..................................... 47
SECTION 7.09. Successor Trustee by Merger................................ 49
SECTION 7.10. Eligibility; Disqualification.............................. 49
SECTION 7.11. Preferential Collection of Claims
Against Company.......................................... 50
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on
Securities; Defeasance.................................... 50
SECTION 8.02. Conditions to Defeasance................................... 51
SECTION 8.03. Application of Trust Money................................. 53
SECTION 8.04. Repayment to Company....................................... 53
SECTION 8.05. Indemnity for Government
Obligations.............................................. 53
SECTION 8.06. Reinstatement.............................................. 53
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders................................. 54
SECTION 9.02. With Consent of Holders.................................... 55
SECTION 9.03. Compliance with Trust Indenture
Act...................................................... 56
SECTION 9.04. Revocation and Effect of Consents
and Waivers.............................................. 56
SECTION 9.05. Notation on or Exchange of
Securities............................................... 56
SECTION 9.06. Trustee to Sign Amendments.................................
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Trust Indenture Act Controls.............................. 57
SECTION 10.02. Notices................................................... 57
SECTION 10.03. Communication by Holders with Other
Holders................................................. 58
SECTION 10.04. Certificate and Opinion as to
</TABLE>
<PAGE>
Contents, p.8
<TABLE>
<S> <C>
Conditions Precedent.................................... 58
SECTION 10.05. Statements Required in Certificate
or Opinion.............................................. 58
SECTION 10.06 Treasury Securities; Original
Issue Discount Securities............................... 59
SECTION 10.07. Rules by Trustee, Paying Agent
and Registrar........................................... 59
SECTION 10.08. Legal Holidays............................................ 59
SECTION 10.09. Governing Law............................................. 60
SECTION 10.10. No Recourse Against Others................................ 60
SECTION 10.11. Successors................................................ 60
SECTION 10.12. Severability.............................................. 60
SECTION 10.13. Multiple Originals........................................ 60
SECTION 10.14. Table of Contents; Headings............................... 60
</TABLE>
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
---------
Section Section
- ------- -------
<TABLE>
<CAPTION>
<S> <C>
310(a)(1) ..............7.10
(a)(2) ..............7.10
(a)(3) ..............N.A.
(a)(4) ..............N.A.
(b) ..............7.08; 7.10
(c) ..............N.A.
311(a) ..............7.11
(b) ..............7.11
(c) ..............N.A.
312(a) ..............2.09
(b) ..............10.03
(c) ..............10.03
313(a) ..............7.06
(b)(1) ..............N.A.
(b)(2) ..............7.06
(c) ..............10.02
(d) ..............7.06
314(a) ..............4.02; 4.07;
10.02
(b) ..............N.A.
(c)(1) ..............10.04
(c)(2) ..............10.04
(c)(3) ..............N.A.
(d) ..............N.A.
(e) ..............10.05
(f) ..............4.07
315(a) ..............7.01
(b) ..............7.05; 10.02
(c) ..............7.01
(d) ..............7.01
(e) ..............6.11
316(a)(last sentence) ...............10.06
(a)(1)(A) .....................6.05
(a)(1)(B) .................. 6.04
(a)(2) ..............N.A.
(b) ..............6.07
317(a)(1) ..............6.08
(a)(2) ..............6.09
(b) ..............2.08
318(a) ..............10.01
</TABLE>
N.A. means Not Applicable.
__________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
10
INDENTURE dated as of March 15, 1998, between CYTEC
INDUSTRIES INC., a Delaware corporation (the "Company"), and PNC
BANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States (the
"Trustee").
RECITALS 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, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Securities"), as in
this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Securities by the Holders
thereof, the Company and the Trustee covenant and agree with each other, for the
benefit of the respective Holders from time to time of the Securities or any
series thereof, as follows:
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions.
------------
"Affiliate" of any specified person means any other person which,
---------
directly or indirectly, is in control of, is controlled by or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
-----------------
as of the date of determination, the lesser of (i) the present value of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/ Leaseback Transaction (including any period for
which such lease has been extended) or (ii) the present value of the total
obligations of the lessee for rental payments from the date of determination
until the first possible termination date of the lease included in such
Sale/Leaseback Transaction, plus the present value of the termination payment
then due, if any. For purposes of this definition, (x) the present value of the
total obligations of the lessee for rental payments and for any termination
<PAGE>
11
payment shall be discounted at a rate of 100 basis points above the yield to
maturity (as of the date of determination) on 10-year United States Treasury
securities and (y) rental payments shall not include (A) amounts due for
maintenance, repairs, utilities, insurance, taxes, assessments and similar
charges or (B) contingent rent, such as that based on sales.
"Board of Directors" means the Board of Directors of the Company or
------------------
any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
------------
"Capital Stock" of any person means any and all shares, interests,
-------------
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, including any Preferred
Stock, but excluding any debt securities convertible into or exchangeable for
such equity.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Company" means the party named as such in this Indenture until a
-------
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Company Order" means a written order of the Company, signed by two
-------------
Officers of the Company or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company (or any other officer performing similar
functions) and delivered to the Trustee or its agent.
"Consolidated Net Tangible Assets" means total assets (net of
--------------------------------
applicable reserves) as determined in accordance with GAAP, less (i) total
current liabilities, except for (A) notes and loans payable, (B) current
maturities of Long-Term Debt and (C) current maturities of obligations under
capital leases, and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as
reflected in the Company's most recent consolidated balance sheet preceding the
date of a determination under Sections 4.03 or 4.04.
"Corporate Trust Office of the Trustee" or other similar term means
-------------------------------------
the office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered in the United States,
except that with respect to the presentation of Securities for payment or for
registration of transfer and exchange, such term shall also mean the office of
the Trustee or the Trustee's agent in the Borough of Manhattan, the city and
state of New York, at which at any particular time its corporate agency business
shall be conducted.
"Currency" means Dollars or Foreign Currency.
--------
"Debt" means any notes, bonds, debentures or other similar evidences
----
of indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time
-------
or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant
----------
to either Section 2.03 or 2.18, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
<PAGE>
12
"Dollar" or "$" means such currency of the United States as at the
------ -
time of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, except as otherwise determined as provided
-----------------
in Section 2.03, with respect to any monetary amount in a Foreign Currency, at
any time for the determination thereof, the amount of Dollars obtained by
converting such Foreign Currency involved in such computation into Dollars at
the spot rate for the purchase of Dollars with the applicable Foreign Currency
as quoted by a United States financial institution designated by the Company in
New York, New York at approximately 11:00 a.m. (New York time) on the date two
Business Days prior to such determination.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Foreign Currency" means a currency issued by the government of any
----------------
country other than the United States or a composite currency (including European
Currency Units) the value of which is determined by reference to the values of
the currencies of any group of countries.
"GAAP" means generally accepted accounting principles in the United
----
States as in effect and applied by the Company from time to time.
"Global Security" means, with respect to any series of Securities
---------------
issued hereunder, a Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or its custodian or pursuant to
the Depositary's instruction, all in accordance with this Indenture and any
indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the outstanding
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining
interest.
"Holder" means the person in whose name a Security is registered on
------
the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
---------
to time, and shall include the form and terms of each particular series of
Securities as contemplated hereunder, whether or not a supplemental indenture is
entered into with respect thereto.
"Lien" means any mortgage, pledge, security interest, conditional sale
----
or other title retention agreement or other similar lien.
"Long-Term Debt" means Debt that by its terms matures on a date more
--------------
than 12 months after the date it was created or Debt that the obligor may extend
or renew without the obligee's consent to a date more than 12 months after the
date the Debt was created.
"Officer" means the Chairman of the Board, the President, any Vice
-------
President, the Controller, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers and
---------------------
delivered to the Trustee or its agent.
<PAGE>
13
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Original Issue Discount Security" means any Security which by its
--------------------------------
terms provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 6.02.
"person" means any individual, corporation, partnership, joint
------
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any corporation,
---------------
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Security means the principal of the Security plus the
---------
premium, if any, payable on the Security.
"Principal Property" means any manufacturing plant or facility
------------------
(together with the land upon which it is erected and fixtures comprising a part
thereof) located in the United States of America (excluding territories and
possessions) now owned or hereafter acquired by the Company or any Restricted
Subsidiary the net book value of which, as of the date of determination, exceeds
1.5% of Consolidated Net Tangible Assets, except any such plant or facility
which is a pollution control or other facility financed by obligations issued by
a state or local governmental unit and described in Sections 141(a), 142(a)(5),
142(a)(6), 142(a)(10) or 144(a) of the Code, or any successor provision thereof,
or which in the opinion of the Board of Directors is not of material importance
to the total business conducted by the Company and its Subsidiaries as a whole.
The net book value of any manufacturing plant or facility shall mean the gross
cost of the assets of such plant or facility less the accumulated depreciation
with respect to such assets, calculated in accordance with GAAP and in the case
of composite depreciation allocated in accordance with the Company's accounting
policies.
"Restricted Subsidiary" means (i) any Subsidiary which has
---------------------
substantially all of its assets located in the United States of America
(excluding territories and possessions) and which owns a Principal Property and
(ii) any Subsidiary which owns stock or indebtedness of a Restricted Subsidiary;
provided, however, that the term "Restricted Subsidiary" shall not mean any
- -------- -------
Subsidiary (x) engaged primarily in financing receivables, making loans,
extending credit or other activities of a character conducted by a finance
company or (y) which conducts substantially all of its business outside the
United States of America (excluding its territories or possessions) or the
principal assets of which are stock or indebtedness of corporations which
conduct substantially all of their business outside the United States of America
(excluding territories and possessions).
"Sale/ Leaseback Transaction" means an arrangement relating to
---------------------------
property now owned or hereafter acquired whereby the Company or a Subsidiary
transfers such property to a person and the Company or a Subsidiary leases it
from such person.
"SEC" means the Securities and Exchange Commission.
---
"Securities" means the Securities issued under this Indenture.
----------
<PAGE>
14
"Stated Maturity" means, with respect to any Security, the date
---------------
specified in such Security as the fixed date on which the principal of such
Security is due and payable.
"Subsidiary" means any corporation, association, partnership or other
----------
business entity of which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. 77aaa-
--- ------
77bbbb) as in effect on the date of this Indenture and, to the extent required
by law, as amended.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it and, thereafter, means or includes each person who is then
a Trustee hereunder, and if at any time there is more than one such person,
"Trustee" as used with respect to the Securities of any series means the Trustee
with respect to Securities of such series.
"Trust Officer" means the Chairman of the Board, the President or any
-------------
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
-----------------------
as in effect from time to time.
"United States" means the United States of America, its territories,
-------------
its possessions and other areas subject to its jurisdiction.
"U.S. Government Obligations" means direct obligations (or
---------------------------
certificates representing an ownership interest in such obligations) of the
United States (including any agency or instrumentality thereof) for the payment
of which the full faith and credit of the United States is pledged and which are
not callable at the issuer's option.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock of
-----------------------
which (other than directors' qualifying shares) is owned by (i) the Company,
(ii) the Company and one or more Wholly Owned Subsidiaries or (iii) one or more
Wholly Owned Subsidiaries.
"Yield to Maturity" means the yield to maturity, calculated at the
-----------------
time of issuance of a series of Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with generally accepted United States bond yield computation principles.
<PAGE>
15
SECTION 1.02. Other Definitions.
------------------
<TABLE>
<CAPTION>
Term Defined in
- ---- Section
-------
<S> <C>
"Bankruptcy Law"................................................. 6.01
"covenant defeasance option"..................................... 8.01(b)
"Custodian"...................................................... 6.01
"Event of Default"............................................... 6.01
"legal defeasance option"........................................ 8.01(b)
"Legal Holiday".................................................. 10.08
"Paying Agent"................................................... 2.07
"Registrar"...................................................... 2.07
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
----------
"indenture securities" means the Securities.
--------------------
"indenture security holder" means a Holder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company and any other
-------
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation; and
(5) words in the singular include the plural and words in the plural
include the singular.
<PAGE>
16
ARTICLE II
The Securities
--------------
SECTION 2.01. Forms Generally. The Securities of each series shall
----------------
be in substantially the form established, without the approval of any Holder, by
or pursuant to a resolution of the Board of Directors 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 the Company
may deem appropriate (and, if not contained in a supplemental indenture entered
into in accordance with Article IX, as are not prohibited by the provisions of
this Indenture) or as may be required or appropriate to comply with any law or
with any rules made pursuant thereto or with any rules of any securities
exchange on which Securities of such series may be listed, or to conform to
general usage, or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
The definitive Securities of each series, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
------------------------------------------------
Trustee's Certificate of Authentication on all Securities authenticated by the
Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
,
As Trustee
By.....................
Authorized Officer
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate
-------------------------------------
principal amount of Securities that may be issued, executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, in or pursuant to a resolution
of the Board of Directors and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, any or all of the following:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for
<PAGE>
17
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to this Article II);
(3) the date or dates on which the principal and premium, if any,
of the Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable, or the method by which such date shall be determined, the record
dates for the determination of Holders thereof to whom such interest is
payable, the person to whom any interest on any Security of the series
shall be payable, if other than the person in whose name such Security (or
one or more predecessor Securities) is registered at the close of business
on the record date for such interest, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee, where the principal of, and premium,
if any, and interest, if any, on, the Securities of the series shall be
payable and where the Securities of the series may be surrendered for
registration of transfer or exchange;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which the Securities of the series may be
redeemed, in whole or in part, at the option of the Company or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay the Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the price or
prices at which and the period or periods within which and the terms and
conditions upon which the Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the series shall be
issuable;
(9) if the amount of principal of, or premium, if any, or interest,
if any, on, the Securities of the series may be determined with reference
to an index or pursuant to a formula, the manner in which such amounts
shall be determined;
(10) if the principal amount payable at the Stated Maturity of the
Securities of the series shall not be determinable as of any one or more
dates prior to such Stated Maturity, the amount that shall be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof that shall be due and payable upon any maturity
other than the Stated Maturity or that shall be deemed to be outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined);
(11) any changes or additions to Article VIII, including the addition
of covenants that may be subject to the covenant defeasance option pursuant
to Section 8.01(b)(ii);
(12) if other than such coin or Currency of the United States as at
the time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or unit or units of two or more
Currencies in which payment of the principal of, and premium, if any, and
interest, if any, on, the Securities of the series shall be
<PAGE>
18
payable; and the manner of determining the equivalent thereof in the
currency of the United States for purposes of the definition of Dollar
Equivalent;
(13) if the principal of, and premium, if any, and interest, if any,
on, the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in coin or Currency or Currencies or unit or
units of two or more Currencies, other than that or those in which the
Securities are stated to be payable, the coin or Currency or Currencies or
unit or units of two or more Currencies in which payment of the principal
of, and premium, if any, and interest, if any, on, the Securities of such
series as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election may be
made;
(14) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series that shall be payable upon
declaration of acceleration of the maturity thereof or provable in
bankruptcy pursuant to Section 6.02 or 6.09, as the case may be;
(15) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Securities of the series of any properties,
assets, monies, proceeds, securities or other collateral, including whether
certain provisions of the TIA are applicable and whether any corresponding
changes will be made to provisions of this Indenture as currently in
effect;
(16) any addition to or change in the Events of Default with respect
to the Securities of the series and any change in the right of the Trustee
or the Holders to declare the principal of, and premium, if any, and
interest, if any, on, such Securities due and payable;
(17) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities in definitive
registered form if other than as provided for in Section 2.18; the
Depositary for such Global Security or Securities; and the form of any
legend or legends to be borne by any such Global Security or Securities in
addition to or in lieu of the legend referred to in Section 2.18;
(18) any trustees, authenticating or paying agents, transfer agents or
registrars;
(19) the applicability of, and any addition to or change in, the
covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article V;
(20) the terms, if any, of any guarantee of the payment of principal
of, and premium, if any, and interest, if any, on, the Securities of the
series and any corresponding changes to the provisions of this Indenture as
currently in effect;
(21) with regard to Securities of the series that do not bear
interest, the dates for delivery of lists of Holders pursuant to Section
2.09 to the Trustee; and
<PAGE>
19
(22) any other terms of the Securities of the series (which terms are
not expressly prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors and as set forth in such Officers'
Certificate or in any such indenture supplemental hereto.
Notwithstanding Section 2.03(2) and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 2.04. Execution of Securities. Two Officers shall sign the
------------------------
Securities of each series for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities of each series and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
SECTION 2.05. Authentication and Delivery of Securities. At any time
------------------------------------------
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities in accordance with a Company Order. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Company,
authorizing the issuance of any series of Securities;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate pursuant to Sections 2.03 and 10.05; and
(4) an Opinion of Counsel prepared in accordance with Section 10.05
which shall also state:
(A) that the form of such Securities has been established in
conformity with the provisions of this Indenture;
<PAGE>
20
(B) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(C) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, shall constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting the enforcement of creditors' rights generally
and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(D) that the Company has the corporate power to issue such
Securities and has duly taken all necessary corporate action with
respect to such issuance;
(E) that the issuance of such Securities will not contravene the
charter or by-laws of the Company; and
(F) that authentication and delivery of such Securities and the
execution and delivery of any supplemental indenture will not violate
the terms of this Indenture.
Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a Currency other than that
of the United States.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.05 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee or a
trust committee of directors, trustees or vice presidents, and being advised by
counsel, shall determine that such action would expose the Trustee to personal
liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities of any series. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Securities. Unless otherwise provided
---------------------------
in the form of Security for any series, the Securities of each series shall be
issuable in registered form without coupons in denominations of $1,000 and any
integral multiple thereof.
<PAGE>
21
SECTION 2.07. Registrar and Paying Agent. The Company shall maintain
---------------------------
an office or agency where Securities of each series may be presented for
registration of transfer or for exchange (the "Registrar"), an office or agency
---------
where Securities of each series may be presented for payment (the "Paying
------
Agent") and an office or agency where notices and demands to or upon the Company
- -----
in respect of Securities of each series and in respect of this Indenture with
respect to Securities of each series may be served. The Registrar shall keep a
register of the Securities of each series and of their transfer and exchange.
The Company may have one or more co-registrars and one or more additional paying
agents or agents for service of notices and demands. The term "Paying Agent"
includes any additional paying agent. Any agent appointed pursuant to this
Section for service of notices and demands shall promptly forward to the Company
any notices and demands received by it as such agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, co-registrar or agent for service of notices and
demands not a party to this Indenture, which shall incorporate the terms of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such agent. The Company shall notify the Trustee of the name and address of
any such agent. If the Company fails to maintain a Registrar, Paying Agent or
agent for service of notices and demands, the Trustee shall act as such (and the
address for any presentation of Securities or service of notices and demands
shall be the Corporate Trust Office of the Trustee) and the Trustee shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its U.S. incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar, co-registrar, transfer agent or agent for service of
notices and demands.
The Company initially appoints the Trustee at its Corporate Trust
Office as Registrar, Paying Agent and agent for service of notices and demands
in connection with the Securities of each series.
SECTION 2.08. Paying Agent To Hold Money in Trust. On or prior to
------------------------------------
each due date of the principal and interest, if any, on any Security of any
series, the Company shall deposit with the Paying Agent a sum sufficient to pay
such principal and interest when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest, if any, on
the Securities of any series and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.09. Lists of Holders. The Trustee shall preserve in as
-----------------
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders with respect to each series of Securities.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee,
in writing at least five Business Days before any interest payment date with
respect to any series of Securities and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders with respect to such
series of Securities.
<PAGE>
22
SECTION 2.10. Transfer and Exchange. When Securities of any series
----------------------
are presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if the
requirements of Section 8-401(1) of the Uniform Commercial Code are met. When
Securities of any series are presented to the Registrar or a co-registrar with a
request to exchange them for an equal principal amount of Securities of such
series of the same tenor but of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges of any series of Securities, the Company
shall execute and the Trustee shall authenticate Securities of such series at
the Registrar's or co-registrar's request. The Company may require payment of a
sum sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section. The Company
shall not be required to make and the Registrar need not register transfers or
exchanges of Securities of any series selected for redemption (except, in the
case of Securities of any series to be redeemed in part, the portion thereof not
to be redeemed) or any Securities of any series for a period of 15 days before a
selection of Securities of such series to be redeemed.
Prior to the due presentation for registration of transfer of any
Security of any series, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose name a
Security of such series is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security is
overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar
or any co-registrar shall be affected by notice to the contrary.
All Securities of a series issued upon any transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Securities of such
series surrendered upon such transfer or exchange.
SECTION 2.11. Replacement Securities. If a mutilated Security of any
-----------------------
series is surrendered to the Registrar or if the Holder of a Security of any
series claims that such Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security of such series of the same tenor if the requirements of Section 8-405
of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Company and the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may
suffer if a Security of such series is replaced. The Company and the Trustee
may charge the Holder for their expenses in replacing any Security.
Every replacement Security is an additional obligation of the Company.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, destroyed or wrongfully taken Securities.
<PAGE>
23
SECTION 2.12. Outstanding Securities. Securities of any series
-----------------------
outstanding at any time are all Securities of such series authenticated by the
Trustee except for those canceled by it, those delivered to it for cancelation
and those described in this Section as not outstanding. A Security of a series
does not cease to be outstanding because the Company or an Affiliate of the
Company holds such Security.
If a Security of a series is replaced pursuant to Section 2.11, it
ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that such replaced Security is held by a bona fide
purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a maturity, redemption or repayment date, money sufficient to
pay all principal, premium, if any, and interest, if any, payable on that date
with respect to the Securities of any series maturing or to be redeemed or
repaid, then on and after that date such Securities shall cease to be
outstanding and interest on them shall cease to accrue.
SECTION 2.13. Temporary Securities. Until definitive Securities of a
---------------------
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of a
series shall be substantially in the form of definitive Securities of such
series but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities of a series and deliver
them in exchange for temporary Securities of such series having the same tenor.
SECTION 2.14. Cancelation. The Company at any time may deliver
------------
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancelation.
SECTION 2.15. Payment of Interest; Interest Rights Preserved. Unless
-----------------------------------------------
otherwise provided as contemplated by Section 2.03(4) with respect to any series
of Securities, interest on any Security that is payable and is punctually paid
or duly provided for on any interest payment date shall be paid to the person in
whose name such Security is registered at the close of business on the regular
record date for such interest notwithstanding the cancelation of such Security
upon any transfer or exchange subsequent to the regular record date. Payment of
interest on the Securities of any series shall be made at the Corporate Trust
Office of the Trustee (except as otherwise specified pursuant to Section 2.03),
or at the option of the Company, by check mailed to the address of the person
entitled thereto as such address shall appear in the register of the Securities
of such series kept by the Registrar or, if provided pursuant to Section 2.03
and in accordance with arrangements satisfactory to the Trustee, at the option
of any Holder by wire transfer to an account designated by such Holder.
<PAGE>
24
Subject to the foregoing provisions of this Section 2.15 and Section
2.20, each Security of a particular series delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Security
of the same series shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.16. Securities Denominated in Foreign Currencies. Except
---------------------------------------------
as otherwise specified pursuant to Section 2.03 for the Securities of any
series, payment of the principal of, and premium, if any, and interest, if any,
on, the Securities of such series shall be made in Dollars.
For the purposes of calculating the principal amount of the Securities
of any series denominated in a Foreign Currency for any purpose under this
Indenture, the principal amount of such Securities at any time outstanding shall
be deemed to be the Dollar Equivalent of such principal amount as of the date of
any such calculation.
In the event any Foreign Currency in which any payment with respect to
any series of Securities may be made ceases to be a freely convertible Currency
on United States Currency markets, for any date thereafter on which payment of
principal of, or premium, if any, or interest, if any, on, the Securities of a
series is due, the Company shall select the Currency of payment for use on such
date, all as provided in the Securities of such series. In such event, the
Company shall, as provided in the Securities of such series, notify the Trustee
of the Currency which it has selected to constitute the funds necessary to meet
the Company's obligations on such payment date and of the amount of such
Currency to be paid. Such amount shall be determined as provided in the
Securities of such series. The payment to the Trustee or the Paying Agent with
respect to such payment date shall be made by the Company solely in the Currency
so selected.
SECTION 2.17. Wire Transfers. Notwithstanding any other provision to
---------------
the contrary in this Indenture, the Company may make any payment of monies
required to be deposited with the Trustee or the Paying Agent on account of
principal of, or premium, if any, or interest, if any, on, the Securities of any
series (whether pursuant to optional or mandatory redemption payments, interest
payments or otherwise) by wire transfer in immediately available funds to an
account designated by the Trustee or the Paying Agent on or before the date such
monies are to be paid to the Holders of the Securities of such series in
accordance with the terms hereof.
SECTION 2.18. Securities Issuable in the Form of a Global Security.
-----------------------------------------------------
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03 that the
Securities of any series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee or its
agent shall, in accordance with Section 2.05, authenticate and deliver, such
Global Security or Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
outstanding Securities of such series to be represented by such Global Security
or Securities, or such portion thereof as the Company shall specify in an
Officers' Certificate, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or its nominee, (iii) shall be delivered
by the Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the
<PAGE>
25
individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary", or such other legend as may then be
required by the Depositary for such Global Security or Securities.
(b) Notwithstanding any provision of Section 2.10 to the contrary,
and subject to the provisions of paragraph (c) below, unless the terms of a
Global Security expressly permit such Global Security to be exchanged in whole
or in part for definitive Securities in registered form, a Global Security may
be transferred, in whole but not in part and in the manner provided in Section
2.10, only by the Depositary to a nominee of the Depositary, or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary, or by the
Depositary or a nominee of the Depositary to a successor Depositary selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Securities of any series shall no longer be eligible or in
good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Securities of such series in
exchange for such Global Security or Securities, shall authenticate and deliver,
individual Securities of such series of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued or issuable in
the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series in
exchange in whole or in part for such Global Security or Securities, shall
authenticate and deliver individual Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such series or portion thereof in exchange for such
Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.01 and 2.03
with respect to Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a
Company Order for the authentication and delivery of definitive Securities
of such series shall authenticate and deliver, without service charge, (1)
to each person specified by such Depositary a
<PAGE>
26
new Security or Securities of the same series of like tenor and terms and
of any authorized denomination as requested by such person in an aggregate
principal amount equal to and in exchange for such person's beneficial
interest in the Global Security; and (2) to such Depositary a new Global
Security of like tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company shall execute and the Trustee or its agent shall
authenticate and deliver individual Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Securities,
such Global Security shall be cancelled by the Trustee or its agent.
Except as provided in the preceding paragraph, Securities issued in
exchange for a Global Security pursuant to this Section 2.18 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee or
the Registrar. The Trustee or the Registrar shall deliver such Securities
to the persons in whose names such Securities are so registered.
(v) Payments in respect of the principal of, premium, if any, and
interest, if any, on any Securities registered in the name of the
Depositary or its nominee will be payable to the Depositary or such nominee
in its capacity as the registered owner of such Global Security. The
Company and the Trustee may treat the person in whose names the Securities,
including the Global Security, are registered as the owner thereof for the
purpose of receiving such payments and for any and all other purposes
whatsoever. None of the Company, the Trustee, any Registrar, the Paying
Agent or any agent of the Company or the Trustee shall have any
responsibility or liability for (a) any aspect of the records relating to
or payments made on account of the beneficial ownership interests of the
Global Security by the Depositary or its nominee or any of the Depositary's
direct or indirect participants, or for maintaining, supervising or
reviewing any records of the Depositary, its nominee or any of its direct
or indirect participants relating to the beneficial ownership interests of
the Global Security, (b) the payments to the beneficial owners of the
Global Security of amounts paid to the Depositary or its nominee or (c) any
other matter relating to the actions and practices of the Depositary, its
nominee or any of its direct or indirect participants. None of the
Company, the Trustee, any Registrar, the Paying Agent or any agent of the
Company or the Trustee shall be liable for any delay by the Depositary, its
nominee or any of its direct or indirect participants in identifying the
beneficial owners of the Securities, and the Company and the Trustee may
conclusively rely on, and shall be protected in relying on, instructions
from the Depositary or its nominee for all purposes (including with respect
to the registration and delivery, and the respective principal amounts, of
the Securities to be issued).
<PAGE>
27
SECTION 2.19. Medium Term Securities. Notwithstanding any contrary
-----------------------
provision herein, if all the Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental indenture, Opinion of Counsel or Company Order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 10.05 at or
prior to the time of authentication of each Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Security of such series
to be issued; provided, however, that any subsequent request by the Company to
-------- -------
the Trustee to authenticate Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 10.05 shall be true and correct as if made on such
date; provided further, however, that, with respect to the Securities of a
---------------- -------
series which are not to be issued at one time, the Trustee shall be entitled to
such Opinion of Counsel only once at or prior to the time of the first
authentication of the Securities of such series and the Opinion of Counsel
described in Section 2.05 shall state:
(1) that, when the terms of such Securities shall have been
established pursuant to a Company Order or pursuant to such procedures as
may be specified from time to time by a Company Order, such terms will have
been established in conformity with the provisions of this Indenture;
(2) that such Securities, when (i) executed by the Company, (ii)
completed, authenticated and made available for delivery by the Trustee in
accordance with this Indenture, (iii) issued and delivered by the Company
and (iv) paid for, all as contemplated by and in accordance with the
aforesaid Company Order or specified procedures, as the case may be, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting the enforcement of creditors' rights
generally and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
and
(3) the other matters required by Section 2.05(4)(A), (D), (E) and
(F).
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that the
Securities which are the subject thereof shall be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the telephonic
or written order of persons designated in such written order (any such
telephonic instructions to be promptly confirmed in writing by such person) and
that such persons are authorized to determine, consistent with the Officers'
Certificate, supplemental indenture or resolution of the Board of Directors
relating to such written order, such terms and conditions of such Securities as
are specified in such Officers' Certificate, supplemental indenture or such
resolution.
Notwithstanding any contrary provision herein, if all the Securities
of a series are not to be originally issued at one time, any Officers'
Certificate required to be delivered pursuant to Section 2.03 need not set forth
all of the terms of the Securities required to be established
<PAGE>
28
pursuant to Section 2.03, but need set forth only the manner in which such terms
shall be established.
SECTION 2.20. Defaulted Interest. If the Company defaults in a
-------------------
payment of interest on the Securities of any series, the Company shall pay
defaulted interest (plus interest on such defaulted interest to the extent
lawful at the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by such Securities) in any lawful manner. The Company may pay
the defaulted interest to the persons who are Holders of Securities of such
series on a subsequent special record date, which date shall be at least five
Business Days prior to the payment date. The Company shall fix or cause to be
fixed any such special record date and payment date, and, at least 15 days
before any such special record date, the Company shall mail to each such Holder
a notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.21. Judgments. The Company may provide pursuant to Section
----------
2.03 for Securities of any series that (i) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest, if any, on,
the Securities of such series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Securities of such series shall be given in the Designated Currency;
(ii) the obligation of the Company to make payments in the Designated Currency
of the principal of, and premium, if any, and interest, if any, on, such
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) on the Business Day in
the country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (iii) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (iv) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE III
Redemption of Securities
------------------------
SECTION 3.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to the Securities of any series which are redeemable
before their Stated Maturity except as otherwise specified as contemplated by
Section 2.03 for Securities of such series.
SECTION 3.02. Notice of Redemption; Selection of Securities. In case
----------------------------------------------
the Company shall desire to exercise the right to redeem all or, as the case may
be, any part of the Securities of any series in accordance with their terms, the
Company shall fix a date for redemption and shall, in the manner provided in
Section 10.02, give notice of such redemption at
<PAGE>
29
least 30 and not more than 60 days prior to the date fixed for redemption to the
Holders of Securities of such series so to be redeemed as a whole or in part.
The notice if given in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice. In any
case, failure to give such notice or any defect in the notice to the Holder of
any Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify (i) the date fixed for
redemption; (ii) the redemption price at which Securities of such series are to
be redeemed; (iii) the place or places that payment will be made upon
presentation and surrender of such Securities; (iv) that any interest accrued to
the date fixed for redemption will be paid as specified in said notice; (v) that
the redemption is for a sinking fund payment (if applicable); (vi) that, unless
the Company defaults in making such redemption payment, on and after said date
any interest thereon or on the portions thereof to be redeemed will cease to
accrue and, in the case of Original Issue Discount Securities, original issue
discount shall cease to accrue; (vii) the terms of the Securities of that series
pursuant to which the Securities of that series are being redeemed and that no
representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Securities of that series; and
(viii) if less than all the outstanding Securities of any series and tenor are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed. If less than
all the Securities of a series are to be redeemed the notice of redemption shall
specify the CUSIP numbers of the Securities of that series to be redeemed. In
case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of that series in
principal amount equal to the unredeemed portion thereof will be issued.
At least 60 days before the redemption date, unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount and series of Securities to be
redeemed and terms of the Securities pursuant to which such redemption will
occur. Such notice shall be accompanied by an Officers' Certificate and an
Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein.
On or prior to the redemption date for any Securities, the Company
shall deposit with the Trustee or with the Paying Agent (or, if the Company is
acting as its own paying agent, segregate and hold in trust) an amount of money
in the Currency in which such Securities are denominated (except as provided
pursuant to Section 2.03) sufficient to pay the redemption price of such
Securities (which shall include the accrued interest, if any, thereon, unless
otherwise specified pursuant to Section 2.03) or any portions thereof that are
to be redeemed on that date.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities of that series or portions thereof (in
multiples of $1,000) to be redeemed by lot or by such other method as the
Trustee considers fair and appropriate. In any case where more than one
Security of such series is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered as if it were
represented by one Security
<PAGE>
30
of such series. The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. If any
Security called for redemption shall not be so paid upon surrender thereof on
such redemption date, the principal, premium, if any, and interest, if any,
shall bear interest until paid from the redemption date at the rate borne or
provided for by the Securities of that series. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption.
SECTION 3.03. Payment of Securities Called for Redemption. If notice
--------------------------------------------
of redemption has been given as provided in Section 3.02, the Securities or
portions of Securities of the series with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable redemption price, together with any interest
accrued to the date fixed for redemption, and on and after said date (unless the
Company shall default in the payment of such Securities at the applicable
redemption price, together with any interest accrued to said date) any interest
on such Securities or portions of such Securities so called for redemption shall
cease to accrue and any original issue discount in the case of Original Issue
Discount Securities shall cease to accrue. On presentation and surrender of
such Securities at the place or places of payment in said notice specified, the
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with any interest
accrued thereon to the date fixed for redemption.
Any Security that is to be redeemed only in part shall be surrendered
at the Corporate Trust Office of the Trustee or such other office or agency of
the Company as is specified pursuant to Section 2.03 with, if the Company, the
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing, and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; except that, if a Global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum
-------------------------------------
amount of any sinking fund payment provided for by the terms of Securities of
any series, resolution of the Board of Directors or a supplemental indenture 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, resolution of the Board of Directors or a supplemental indenture is
herein referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company or (b) receive credit for the
principal amount of Securities of that series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the
<PAGE>
31
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, resolution or supplemental indenture, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of the same series required to be made pursuant to the
terms of the Securities of such series; provided, that such Securities have not
--------
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such
Securities, resolution or supplemental indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 3.05. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, any resolution or supplemental indenture,
the portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Securities of such series are denominated (except as
provided pursuant to Section 2.03) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities of that series pursuant to
Section 3.04 (which Securities, if not previously redeemed, will accompany such
certificate), the basis for such credit, that such Securities have not
previously been so credited and whether the Company intends to exercise its
right to make any permitted optional sinking fund payment with respect to such
series. Such certificate shall also state that no Event of Default has occurred
and is continuing with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company to deliver such
certificate (or to deliver the Securities specified in this paragraph) shall not
constitute a Default, but such failure shall require that the sinking fund
payment due on the next succeeding sinking fund payment date for that series
shall be paid entirely in cash and shall be sufficient to redeem the principal
amount of such Securities subject to a mandatory sinking fund payment without
the option to deliver or credit Securities as provided in Section 3.04 and
without the right to make any optional sinking fund payment, if any, with
respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the redemption price specified in such Securities,
resolution or supplemental indenture for operation of the sinking fund together
with any accrued interest to the date fixed for redemption. Any sinking fund
monies not so applied or allocated by the Trustee to the redemption of
Securities shall be added to the next cash sinking fund payment received by the
Trustee for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section 3.05. Any and all sinking fund
monies with respect to the Securities of any particular series held by the
Trustee on the last sinking fund payment date with respect to Securities of such
series and not held for the payment or redemption of particular Securities shall
be applied by the Trustee, together with other monies, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Securities of that series at its Stated Maturity.
<PAGE>
32
The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02 except that the notice of
redemption shall also state that the Securities are being redeemed by operation
of the sinking fund. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section
3.03.
On or prior to each sinking fund payment date, the Company shall pay
to the Trustee (or, if the Company is acting as its own paying agent, the
Company shall segregate and hold in trust) in cash a sum in the Currency in
which the Securities of such series are denominated (except as provided pursuant
to Section 2.03) equal to any interest accrued to the date fixed for redemption
of Securities or portions thereof to be redeemed on such sinking fund payment
date pursuant to this Section 3.05.
The Trustee shall not redeem any Securities of a series with sinking
fund monies or mail any notice of redemption of such Securities by operation of
the sinking fund for such series during the continuance of a Default in payment
of interest on such Securities or of any Event of Default (other than an Event
of Default occurring as a consequence of this paragraph) with respect to such
Securities, except that if the notice of redemption of any such Securities shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Securities if cash sufficient for that purpose shall
be deposited with the Trustee for that purpose in accordance with the terms of
this Article III. Except as aforesaid, any monies in the sinking fund for such
series at the time when any such Default or Event of Default shall occur and any
monies thereafter paid into such sinking fund shall, during the continuance of
such Default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such Event of Default or Default
-------- -------
shall have been cured or waived as provided herein, such monies shall thereafter
be applied on the next sinking fund payment date for such Securities on which
such monies may be applied pursuant to the provisions of this Section 3.05.
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Securities. The Company shall promptly pay
----------------------
the principal of and premium, if any, and interest, if any, on each of the
Securities on the dates and in the manner provided in the Securities and in this
Indenture. Principal, premium and interest shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with
this Indenture money sufficient to pay all principal, premium and interest then
due.
The Company shall pay interest on overdue principal of any Securities
at the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by such Securities, and it shall pay interest on overdue
installments of interest at the same rate or Yield to Maturity (as applicable)
to the extent lawful.
<PAGE>
33
SECTION 4.02. SEC Reports. The Company shall provide to the Trustee
------------
within 15 days after it files them with the SEC, copies of its annual report and
the information, documents and other reports which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA 314(a).
SECTION 4.03. Limitation on Liens. The Company shall not, and shall
--------------------
not permit any Restricted Subsidiary to, incur, issue, assume or guarantee any
Debt secured by a Lien on any Principal Property of the Company or any
Restricted Subsidiary, or on any shares of stock of any Restricted Subsidiary,
without effectively providing that the Securities (together with, if the Company
shall so determine, any other Debt of the Company or such Restricted Subsidiary
then existing or thereafter created which is not subordinate to the Securities)
shall be secured equally and ratably with (or prior to) such secured Debt, so
long as such secured Debt shall be so secured; provided, however, that this
-------- -------
Section shall not apply to Debt convertible into shares of Capital Stock of a
Restricted Subsidiary (to the extent that such Debt is secured by such Capital
Stock) or Debt secured by:
(1) Liens on property or shares of stock existing as of the date of
this Indenture;
(2) Liens securing only the Securities;
(3) Liens on property of, or on any shares of stock of any person,
which Liens are existing at the time (i) such property becomes a Principal
Property or (ii) (A) such person becomes a Restricted Subsidiary, (B) such
person is merged into or consolidated with the Company or any Subsidiary or
(C) another Subsidiary merges into or consolidates with such person (in a
transaction in which such person becomes a Restricted Subsidiary) and which
Liens were not incurred in anticipation of such transaction and were
outstanding prior to such transaction;
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(6) Liens on property or shares of stock existing at the time of
acquisition thereof (including acquisition through merger or
consolidation);
(7) Liens on property or shares of stock to secure the payment of all
or any part of the purchase price or construction cost thereof, or to
secure any Debt incurred prior to, at the time of or within 180 days after
the acquisition of such property or shares of stock, the completion of any
such construction or the commencement of full operation, for the purpose of
financing all or any part of the purchase price or construction cost
thereof; provided that such Liens shall be limited to all or a part of such
--------
property or shares of stock (plus improvements on such property);
<PAGE>
34
(8) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the foregoing clauses (1) to (7), inclusive; provided that such
--------
extension, renewal or replacement Lien shall be limited to all or a part of
the same property or shares of stock that secured the Lien extended,
renewed or replaced (plus improvements on such property); and
(9) Liens securing Debt the aggregate principal amount of which Debt,
when added to (A) the aggregate amount of all Attributable Debt of the
Company and its Restricted Subsidiaries in respect of Sale/Leaseback
Transactions existing at such time which would not otherwise be permitted
under Section 4.04 but for Section 4.04(b) and (B) the aggregate
outstanding principal amount of all other Debt of the Company and its
Restricted Subsidiaries secured by Liens on any Principal Property or on
any shares of stock of any Restricted Subsidiary which Debt would not
otherwise be permitted under this Section but for this clause (9), does not
exceed 10% of Consolidated Net Tangible Assets.
SECTION 4.04. Limitation on Sale and Leaseback. (a) The Company
---------------------------------
shall not, and shall not permit any Restricted Subsidiary to, enter into a
Sale/Leaseback Transaction with respect to any Principal Property unless:
(1) the lease has a term of three years or less;
(2) the lease is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries;
(3) the Company or a Restricted Subsidiary under any of clauses (1)
through (8) of Section 4.03 could create a Lien on the property to secure
Debt at least equal in amount to the Attributable Debt for the lease; or
(4) the Company or a Restricted Subsidiary within 180 days of the
effective date of the lease retires Long-Term Debt of the Company (other
than Debt subordinate to the Securities) or a Restricted Subsidiary at
least equal in amount to the Attributable Debt for the lease. A Debt is
retired when it is paid, cancelled or defeased.
(b) Notwithstanding the provisions of Section 4.04(a), the Company or
any Restricted Subsidiary may enter into any Sale/Leaseback Transaction (which
would otherwise be subject to the foregoing restrictions) if the amount of the
Attributable Debt of the Company and its Restricted Subsidiaries in respect of
such Sale/Leaseback Transaction, when added to (i) the aggregate outstanding
principal amount of all Debt of the Company and its Restricted Subsidiaries
secured by Liens on Principal Property or on any shares of stock of any
Restricted Subsidiary which Debt would not otherwise be permitted under Section
4.03 but for clause (9) thereof and (ii) the aggregate amount of all other
Attributable Debt in respect of Sale/Leaseback Transactions existing at such
time which would not otherwise be permitted under this Section but for this
Section 4.04(b), does not at the time exceed 10% of Consolidated Net Tangible
Assets.
SECTION 4.05. Payment of Taxes and Other Claims. The Company shall
----------------------------------
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all
<PAGE>
35
material taxes, assessments and governmental charges levied or imposed upon the
Company or any Restricted Subsidiary or upon the income, profits or property of
the Company or any Restricted Subsidiary and (2) all material lawful claims for
labor, materials and supplies which, if unpaid, might by law become a Lien upon
any Principal Property of the Company or any Restricted Subsidiary; 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 4.06. Corporate Existence. Subject to Article V, the Company
--------------------
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 4.07. Compliance Certificate. The Company shall deliver to
-----------------------
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default by the Company and whether or not the signers know of
any Default that occurred during such period. If they do, the certificate shall
describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA
314(a)(4).
SECTION 4.08. Further Instruments and Acts. Upon request of the
-----------------------------
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
------------------------------------------
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any person, unless:
(i) the resulting, surviving or transferee person (if not the
Company) shall be a person organized and existing under the laws of the
United States, any State thereof or the District of Columbia and such
person shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture (if any) comply with this Indenture.
<PAGE>
36
The resulting, surviving or transferee person shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the Company or any other predecessor to such
resulting, surviving or transferee person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" with respect
------------------ ----------------
to Securities of any series occurs if:
(1) the Company defaults in any payment of interest, if any, on any
Securities of such series when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of principal of or premium, if
any, on any Securities of such series when the same becomes due and payable
at their Stated Maturity or upon redemption, declaration, required
repurchase or otherwise;
(3) the Company defaults in any payment in respect of a sinking,
purchase or analogous fund, if any, with respect to any Securities of such
series when the same becomes due and payable;
(4) the Company fails to comply with any covenants or agreements on
the part of the Company in the Securities of such series or in this
Indenture with respect to Securities of such series, and such failure
continues for 60 days after the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
<PAGE>
37
(B) appoints a Custodian of the Company or for any substantial
part of its property; or
(C) orders the winding up or liquidation of the Company;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
(7) an event of default, as defined in any indenture or instrument
evidencing or under which the Company has at the date of this Indenture or
shall hereafter have outstanding at least $50,000,000 aggregate principal
amount of indebtedness for borrowed money, shall happen and be continuing
and such indebtedness shall have been accelerated so that the same shall be
or become due and payable prior to the date on which the same would
otherwise have become due and payable, or such aggregate principal amount
of indebtedness shall not be paid when due, and such acceleration or
nonpayment shall not be rescinded or annulled within 30 days after notice
thereof shall have been given to the Company by the Trustee (if such event
be known to it), or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Securities of that series at
the time outstanding; provided, however, that, for the purposes of this
-------- -------
subsection (7), the Company shall not be deemed to be in default if it
shall be contesting in good faith its liability for the payment of the
principal in question, and shall have been advised by its counsel that it
has a meritorious defense thereto; and provided further that, if such event
----------------
of default under such indenture or instrument shall be remedied or cured by
the Company or waived by the holders of such indebtedness, then the Event
of Default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Holders; or
(8) any other Event of Default provided with respect to Securities of
such series occurs.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
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.
The term "Bankruptcy Law" means Title 11, United States Code, or any
--------------
similar Federal or state law for the relief of debtors. The term "Custodian"
---------
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4) with respect to Securities of a series is
not an Event of Default with respect to Securities of such series until the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Securities of such series notify the Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
<PAGE>
38
SECTION 6.02. Acceleration. If an Event of Default (other than an
-------------
Event of Default specified in Section 6.01(5) or (6)) with respect to Securities
of any series occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the outstanding Securities of
such series by notice to the Company and the Trustee, may declare the principal
of (or, if the Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) and accrued but unpaid interest on all the Securities of such series to
be due and payable. Upon such a declaration, such principal and interest with
respect to such series shall be due and payable immediately. If an Event of
Default specified in Section 6.01(5) or (6) with respect to Securities of any
series occurs, the principal of (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) and accrued but unpaid interest on all
the Securities of such series shall ipso facto become and be immediately due and
---- -----
payable without any declaration or other act on the part of the Trustee or any
Holders of Securities of such series. The Holders of a majority in principal
amount of the Securities of a particular series by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default with
respect to such series have been cured or waived except nonpayment of principal,
premium, if any, or interest, if any, that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default with respect to
---------------
Securities of any series occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of and accrued but unpaid
interest on the Securities of such series or to enforce the performance of any
provision of the Securities of such series or of this Indenture with respect to
such series.
The Trustee may maintain a proceeding with respect to Securities of a
series even if it does not possess any of the Securities of such series or does
not produce any of them in the proceeding. A delay or omission by the Trustee
or any Holder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
------------------------
principal amount of the Securities of any series by notice to the Trustee may
waive an existing Default with respect to such series and its consequences
except (i) a Default in the payment of the principal of or premium, if any, and
interest, if any, on a Security of such series or (ii) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Holder affected. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION 6.05. Control by Majority. The Holders of a majority in
--------------------
principal amount of the Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee with respect to
Securities of such series. However, the Trustee may refuse to
<PAGE>
39
follow any direction that conflicts with law or this Indenture or, subject to
Section 7.01, that the Trustee determines is unduly prejudicial to the rights of
other Holders of Securities of such series or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
-------- -------
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Holder of Securities of any
--------------------
series may not pursue any remedy with respect to this Indenture or the
Securities of such series unless:
(1) such Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of such series is
continuing;
(2) the Holders of at least 25% in principal amount of the Securities
of such series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities of
such series do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Holder of Securities of any series may not use this Indenture to
prejudice the rights of another Holder of Securities of such series or to obtain
a preference or priority over another Holder of Securities of such series.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
-------------------------------------
any other provision of this Indenture, the right of any Holder of Securities of
any series to receive payment of principal of and premium, if any, and interest,
if any, on the Securities of such series held by such Holder, on or after the
respective due dates expressed or provided for in the Securities of such series,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
---------------------------
payment of interest, if any, principal or premium, if any, or in respect of a
sinking, purchase or analogous fund, if any, specified in Section 6.01(1), (2)
or (3) occurs and is continuing with respect to Securities of any series, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal, premium, if any, and
interest, if any, then due and payable on Securities of such series (together
with interest on such unpaid principal, premium and interest to the extent
lawful) and the amounts provided for in Section 7.07 with respect to Securities
of such series.
<PAGE>
40
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
---------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of
Securities of any series allowed in any judicial proceedings relative to the
Company, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of such Holders in any election of a
trustee in bankruptcy or other person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each such
Holder to make payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to such Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
-----------
property with respect to Securities of any series pursuant to this Article VI,
it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities of such series for amounts due and
unpaid on the Securities of such series for principal, premium, if any, and
interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities of such series
for principal, premium, if any, and interest, if any, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section. At least 15 days before such record date, the
Company shall mail to each such Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
----------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities of any series.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the
---------------------------------
extent it may lawfully do so) shall 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 shall not hinder, delay or impede the execution
of any power
<PAGE>
41
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
------------------
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
<PAGE>
42
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
------------------
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on an
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
--------- -------
misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
-----------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar or co-registrar may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
---------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in the Indenture, in any document issued in connection
with the sale of the Securities or in the Securities, other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default with respect to
-------------------
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Holder of Securities of such series
notice of the Default within 90 days after it occurs. Except in
<PAGE>
43
the case of a Default in payment of principal of or premium, if any, or
interest, if any, on any Security of such series, the Trustee may withhold such
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding such notice is in the interest of Holders of
Securities of such series; provided, that in the case of any Default of the
--------
character specified in Section 6.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
------------------------------
practicable after each May 15 in each year in which a report is required by TIA
313(a), beginning with the May 15 following the date of this Indenture, and in
any event prior to July 15 in each such year, the Trustee shall mail to each
Holder a brief report dated as of such May 15 that complies with TIA 313(a).
The Trustee also shall comply with TIA 313(b).
A copy of each report at the time of its mailing to Holders of
Securities of any series shall be filed with the SEC and each stock exchange (if
any) on which the Securities of such series are listed. The Company agrees to
notify promptly the Trustee whenever the Securities of any series become listed
on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
---------------------------
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee may have separate counsel and the Company shall pay
the fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and premium, if any, and interest, if any, on particular
Securities.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(5) or (6), the expenses
are intended to constitute expenses of administration under the Bankruptcy Law.
<PAGE>
44
SECTION 7.08. Replacement of Trustee. The Company may, but need not,
-----------------------
appoint a separate Trustee for any one or more series of Securities. The
Trustee may resign with respect to one or more or all series of Securities at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any series may remove the Trustee for such series
and only such series by so notifying the Trustee and may appoint a successor
Trustee for such series. The Company may remove the Trustee with respect to any
and all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee for the series of Securities with respect to which the Trustee has
resigned or been removed or such vacancy exists.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the series of Securities for which the
retiring Trustee has resigned or been removed. The successor Trustee shall mail
a notice of its succession to Holders of Securities of each applicable series.
The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities of any applicable
series may petition any court of competent jurisdiction for the appointment of a
successor Trustee for the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of
Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
Trustee with respect to the Securities of one or more series, the Company, any
retiring Trustee and each successor or separate Trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any
<PAGE>
45
retiring Trustee with respect to the Securities of any series as to which any
such retiring Trustee is not retiring shall continue to be vested in such
retiring Trustee and (2) that shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
----------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
------------------------------
all times satisfy the requirements of TIA 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
310(b); provided, however, that there shall be excluded from the operation of
-------- -------
TIA 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA 310(b)(1)
are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
--------------------------------------------------
Trustee shall comply with TIA 311(a), excluding any creditor relationship
listed in TIA 311(b). A Trustee who has resigned or been removed shall be
subject to TIA 311(a) to the extent indicated.
<PAGE>
46
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
-------------------------------------------------
When (i) the Company delivers to the Trustee all outstanding Securities of any
series (other than Securities replaced pursuant to Section 2.11) for cancelation
or (ii) all outstanding Securities of any series have become due and payable and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity all outstanding Securities of such series, including interest, if any,
thereon (other than Securities replaced pursuant to Section 2.11), and if in
either case the Company pays all other sums payable hereunder by the Company
with respect to Securities of such series, then this Indenture with respect to
Securities of such series shall, subject to Sections 8.01(c) and 8.06, cease to
be of further effect. The Trustee shall acknowledge satisfaction and discharge
of this Indenture with respect to Securities of such series on demand of the
Company accompanied by an Officers' Certificate.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company at any
time may terminate with respect to Securities of any series (i) all its
obligations under the Securities of such series and under this Indenture with
respect to Securities of such series ("legal defeasance option") or (ii) its
-----------------------
obligations with respect to Securities of such series under Sections 4.03 and
4.04 and the related operation of Section 6.01(4) (to the extent it relates to
Section 4.03 or 4.04) ("covenant defeasance option"). The Company may exercise
--------------------------
its legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option with respect to
Securities of any series, payment of the Securities of such series may not be
accelerated because of an Event of Default. If the Company exercises its
covenant defeasance option with respect to Securities of any series, payment of
the Securities of such series may not be accelerated because of an Event of
Default specified in Section 6.01(4) (to the extent it relates to Section 4.03
or 4.04) with respect to Securities of such series.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding compliance with clauses (a) and (b) above (to the
extent clause (b) relates to the legal defeasance option), the Company's
obligations with respect to Securities of any series in Sections 2.07, 2.08,
2.09, 2.10, 2.11, 2.18, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the
Securities of such series have been paid in full. Thereafter, the Company's
obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
-------------------------
legal defeasance option or its covenant defeasance option with respect to a
series of Securities only if:
(1) the Company irrevocably deposits in trust with the Trustee (i)
money in an amount sufficient to pay and discharge the principal of and
premium, if any, and interest, if any, on the Securities of such series to
maturity or redemption, as the case may be,
<PAGE>
47
(ii) 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 the day before the due date of any payment,
money in the amount set forth in clause (i) of this paragraph or (iii) any
combination of clauses (i) and (ii) of this paragraph which when taken
together will provide money in the amount set forth in clause (i) of this
paragraph;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal, premium, if any, and interest, if
any, when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash
at such times and in such amounts as will be sufficient to pay principal,
premium, if any, and interest, if any, when due on all the Securities of
such series to maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default with respect to such series of Securities specified in
Section 6.01(5) or (6) occurs which is continuing at the end of the period;
(4) no Default with respect to such series of Securities has occurred
and is continuing on the date of such deposit and after giving effect
thereto;
(5) the deposit does not constitute a default under or result in a
breach of or violation under any other agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) 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 of Counsel shall confirm that,
the Holders of Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred;
(8) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
<PAGE>
48
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities of such series as contemplated
by this Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities of such series at a
future date in accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
---------------------------
trust money or U.S. Government Obligations deposited with it with respect to
Securities of any series pursuant to this Article VIII. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
of and premium, if any, and interest, if any, on the Securities of such series.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
---------------------
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to the money must look to the Company
for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company
-------------------------------------
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
--------------
unable to apply any money or U.S. Government Obligations with respect to
Securities of any series in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
of such series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article VIII until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article VIII; provided, however, that, if the Company has made any
-------- -------
payment of interest or premium on or principal of any Securities of such series
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
<PAGE>
49
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders. The Company and the
---------------------------
Trustee may amend this Indenture or the Securities of any series without notice
to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
-------- -------
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Securities of such series or
to secure the Securities of such series;
(5) to add to the covenants of the Company for the benefit of the
Holders of Securities of such series or to surrender any right or power
herein conferred upon the Company;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(7) to make any change that does not adversely affect the rights of
any older of Securities of such series; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee.
SECTION 9.02. With Consent of Holders. The Company and the Trustee
------------------------
may amend the Securities of any series or this Indenture with respect to the
Securities of any series without notice to any Holder of Securities of such
series but with the written consent of the Holders of at least a majority in
principal amount of the Securities of such series. However, without the consent
of each Holder of Securities of such series affected, an amendment may not:
(1) reduce the amount of Securities of such series whose Holders must
consent to an amendment or to a waiver of any Default hereunder and its
consequences as provided herein;
(2) reduce the rate of or extend the time for payment of interest on
any Security of such series;
<PAGE>
50
(3) reduce the principal of any Security of such series or extend the
Stated Maturity of any Security of such series;
(4) reduce the premium payable upon the redemption of any Security of
such series or change the time at which any Security of such series may or
shall be redeemed in accordance with Article III;
(5) impair the right to institute suit for the enforcement of any
payment of principal of or premium, if any, or interest, if any, on any
Security of such series after the Stated Maturity thereof (or, in the case
of redemption, on or after the redemption date); or
(6) make any Security of such series payable in money other than that
stated in such Security.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
An amendment that changes or eliminates any covenant or other
provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Securities or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
------------------------------------
to this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
----------------------------------------------
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those persons who were Holders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
<PAGE>
51
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
--------------------------------------
changes the terms of a Security, the Trustee may require a Holder to deliver
such Security to the Trustee. The Trustee may place an appropriate notation on
the Security regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall sign any
---------------------------
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it
and to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Trust Indenture Act Controls. If any provision hereof
-----------------------------
limits, qualifies or conflicts with the duties imposed by any of TIA 310 to
317, inclusive, through operation of TIA 318(c), such imposed duties shall
control.
SECTION 10.02. Notices. Any notice or communication shall be in
--------
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Cytec Industries Inc.
Five Garret Mountain Plaza
West Paterson, NJ 07424
Attention of Secretary
if to the Trustee:
PNC Bank, National Association
Corporate Trust Department
Two Tower Center Boulevard
20th Floor
East Brunswick, NJ 08816
Attention of Trust Officer
<PAGE>
52
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to the
Holder at the Holder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 10.03. Communication by Holders with Other Holders. Holders
--------------------------------------------
may communicate pursuant to TIA 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion. Each
----------------------------------------------
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than any certificate required by Section
4.07 or TIA 314(a)(4)) shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
<PAGE>
53
SECTION 10.06. Treasury Securities; Original Issue Discount
--------------------------------------------
Securities. In determining whether the Holders of the required principal amount
- -----------
of Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company shall
be disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, the principal
amount of an Original Issue Discount Security shall be the amount of principal
that would be due as of the date of such determination if payment of the
Security were accelerated on that date.
SECTION 10.07. Rules by Trustee, Paying Agent and Registrar. The
---------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 10.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
--------------- -------------
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 10.09. Governing Law. This Indenture and the Securities
--------------
shall be governed by, and construed in accordance with, the laws of the State of
New York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 10.10. No Recourse Against Others. A director, officer,
---------------------------
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 10.11. Successors. All agreements of the Company in this
-----------
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.12. Severability. In case any provision in this Indenture
-------------
or the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.13. Multiple Originals. The parties may sign any number
-------------------
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
<PAGE>
54
SECTION 10.14 Table of Contents; Headings. The table of contents,
----------------------------
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CYTEC INDUSTRIES INC.,
by
/s/ D. D. D. Fry
----------------------------------------------
Title: Chairman and Chief
Executive Officer
[Seal]
Attest: /s/ Roy Smith
------------------
Title: Assistant Secretary
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Julie Salovitch-Miller
----------------------------------------------
Title: Vice President
Attest:
/s/ Devohrah H. Rosen
- --------------------------
Title: Vice President
<PAGE>
55
Exhibit 4.2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE
HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
<PAGE>
REGISTERED $100,000,000
NO. R-1 CUSIP No.: 232820AA8
CYTEC INDUSTRIES INC.
6.50% Note due March 15, 2003
CYTEC INDUSTRIES INC., a Delaware corporation (the "Company"),
promises to pay to Cede & Co., or its registered assigns, the principal amount
of ONE HUNDRED MILLION DOLLARS ($100,000,000) on March 15, 2003.
Interest Payment Dates: March 15 and September 15, commencing
September 15, 1998.
Record Dates: March 1 and September 1.
Additional provisions of this Security are set forth on the other side
of this Security. Such additional provisions shall for all purposes have the
same effect as if set forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated: March 16, 1998
CYTEC INDUSTRIES INC.,
by
/s/ D. D. Fry
--------------------------------------
Title: Chairman and Chief
Executive Officer
/s/ D. Lilley
--------------------------------------
Title: President and Chief
Operating Officer
Dated: March 16, 1998
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
PNC BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this
is one of the Securities referred
to in the Indenture.
by
/s/ J. Salovitch-Miller
------------------------------
Authorized Signatory
<PAGE>
6.50% Note due March 15, 2003
1. Interest
Cytec Industries Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semiannually on March 15 and September 15 of each year, commencing
September 15, 1998. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
March 18, 1998. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the March 1 or September 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest) may
be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company will make all payments
in respect of a certificated Security (including principal, premium and
interest) by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on a certificated Security will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
<PAGE>
3. Paying Agent and Registrar
Initially, PNC Bank, National Association, a national banking
association ("Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of March
15, 1998 ("Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C.
77aaa-77bbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of the Company
limited to $100,000,000 aggregate principal amount (subject to Section 2.11 of
the Indenture).
5. Optional Redemption
The Securities will be redeemable at any time, at the option of the
Company, in whole or from time to time in part, upon not less than 30 and not
more than 60 days' notice mailed to each Holder to be redeemed at the Holder's
address appearing in the books of the Registrar, on any date prior to maturity
(the "Redemption Date") at a price equal to the greater of (i) 100% of the
amount thereof or (ii) as determined by a Quotation Agent (as defined below),
the sum of the present values of the remaining scheduled payments of principal
and interest thereon (not including any portion of such payments of interest
accrued as of the Redemption Date) discounted to the Redemption Date on a semi-
annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate (as defined below) plus 12.5 basis points plus, in each
case, accrued interest thereon to the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury
<PAGE>
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Securities to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Securities.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) if the Trustee obtains four or more Reference Treasury Dealer
Quotation for such redemption date, the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains three or
less such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means (i) SBC Warburg Dillon Read Inc.,
Merrill, Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, Salomon Brothers Inc, and their respective successors; provided,
--------
however, that if any of the foregoing shall cease to be a primary U.S.
- -------
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee by lot or by such other method as the
Trustee in its sole discretion shall deem to be fair and appropriate, although
no Security of $1,000 in original principal amount or less shall be redeemed in
part. If any Security is to be redeemed in part only, the notice of redemption
relating to such Security shall state the portion of the principal amount
<PAGE>
thereof to be redeemed. A new Security in principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancelation of the original Security.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes.
<PAGE>
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities or to secure the Securities,
or to add additional covenants or surrender rights and powers conferred on the
Company, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to evidence and provide for the
acceptance of appointment of a successor Trustee or separate Trustee (or to
change any provisions of the Indenture relating to such appointment).
<PAGE>
12. Defaults and Remedies
Under the Indenture, Events of Default include a (i) default in the
payment of any interest upon any of the Securities for 30 days or more after
such payment is due; (ii) default in the payment of the principal of and
premium, if any, on any of the Securities when due; (iii) default by the Company
in the performance, or breach, of any of its other covenants in the Indenture
which will not have been remedied by the end of a period of 60 days after
written notice 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; (iv) failure to pay when due the principal of, or acceleration of,
any indebtedness for money borrowed by the Company or a Subsidiary in excess of
$50.0 million principal amount, if such indebtedness is not discharged, or such
acceleration is not annulled, by the end of a period of 30 days after written
notice 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; and
(v) certain events of bankruptcy, insolvency or reorganization of the Company.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it receives reasonable indemnity or security. Subject
to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in the interest of the Holders.
13. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company and may otherwise deal with the Company with the same
rights it would have if it were not Trustee.
<PAGE>
14. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
or the Trustee shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
17. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
<PAGE>
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
<PAGE>
________________________________________________________________________
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
________________________________________________________________________
Date: ________________ Your Signature: _____________________________________
________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
<PAGE>
Exhibit 4.3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE
HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
<PAGE>
REGISTERED $100,000,000
NO. R-2 CUSIP No.: 232820AB6
CYTEC INDUSTRIES INC.
6.75% Note due March 15, 2008
CYTEC INDUSTRIES INC., a Delaware corporation (the "Company"),
promises to pay to Cede & Co., or its registered assigns, the principal amount
of ONE HUNDRED MILLION DOLLARS ($100,000,000) on March 15, 2008.
Interest Payment Dates: March 15 and September 15, commencing
September 15, 1998.
Record Dates: March 1 and September 1.
Additional provisions of this Security are set forth on the other side
of this Security. Such additional provisions shall for all purposes have the
same effect as if set forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated: March 16, 1998
CYTEC INDUSTRIES INC.,
by
/s/ D. D. Fry
-------------------------------------
Title: Chairman and Chief
Executive Officer
/s/ D. Lilley
-------------------------------------
Title: President and Chief
Operating Officer
Dated: March 16, 1998
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
PNC BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this
is one of the Securities referred
to in the Indenture.
by
/s/ J. Salovitch-Miller
- -----------------------------
Authorized Signatory
<PAGE>
6.75% Note due March 15, 2008
1. Interest
Cytec Industries Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semiannually on March 15 and September 15 of each year, commencing
September 15, 1998. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
March 18, 1998. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the March 1 or September 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest) may
be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company will make all payments
in respect of a certificated Security (including principal, premium and
interest) by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on a certificated Security will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
<PAGE>
3. Paying Agent and Registrar
Initially, PNC Bank, National Association, a national banking
association ("Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of March
15, 1998 ("Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C.
77aaa-77bbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of the Company
limited to $100,000,000 aggregate principal amount (subject to Section 2.11 of
the Indenture).
5. Optional Redemption
The Securities will be redeemable at any time, at the option of the
Company, in whole or from time to time in part, upon not less than 30 and not
more than 60 days' notice mailed to each Holder to be redeemed at the Holder's
address appearing in the books of the Registrar, on any date prior to maturity
(the "Redemption Date") at a price equal to the greater of (i) 100% of the
amount thereof or (ii) as determined by a Quotation Agent (as defined below),
the sum of the present values of the remaining scheduled payments of principal
and interest thereon (not including any portion of such payments of interest
accrued as of the Redemption Date) discounted to the Redemption Date on a semi-
annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate (as defined below) plus 15 basis points plus, in each
case, accrued interest thereon to the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
<PAGE>
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Securities to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Securities.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) if the Trustee obtains four or more Reference Treasury Dealer
Quotation for such redemption date, the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains three or
less such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means (i) SBC Warburg Dillon Read Inc.,
Merrill, Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, Salomon Brothers Inc, and their respective successors; provided,
--------
however, that if any of the foregoing shall cease to be a primary U.S.
- -------
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
In the case of any partial redemption, selection of the Securities for
redemption will be made by the Trustee by lot or by such other method as the
Trustee in its sole discretion shall deem to be fair and appropriate, although
no Security of $1,000 in original principal amount or less shall be redeemed in
part. If any Security is to be redeemed in part only, the notice of redemption
relating to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancelation of the original Security.
<PAGE>
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest on all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
<PAGE>
10. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee may amend
the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities or to secure the Securities,
or to add additional covenants or surrender rights and powers conferred on the
Company, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to evidence and provide for the
acceptance of appointment of a successor Trustee or separate Trustee (or to
change any provisions of the Indenture relating to such appointment).
12. Defaults and Remedies
Under the Indenture, Events of Default include a (i) default in the
payment of any interest upon any of the Securities for 30 days or more after
such payment is due; (ii) default in the payment of the principal of and
premium, if any, on any of the Securities when due; (iii) default by the Company
in the performance, or breach, of any of its other covenants in the Indenture
which will not have been remedied by the end of a period of 60 days after
written notice 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; (iv) failure to pay when due the principal of, or acceleration of,
any indebtedness for money borrowed by the Company or a Subsidiary in excess of
$50.0 million principal amount, if such indebtedness is not discharged, or such
acceleration is not annulled, by the end of a period of 30 days after written
notice 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; and
(v) certain events of bankruptcy, insolvency or reorganization of the Company.
<PAGE>
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it receives reasonable indemnity or security. Subject
to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in the interest of the Holders.
13. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company and may otherwise deal with the Company with the same
rights it would have if it were not Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
or the Trustee shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
<PAGE>
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
17. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
____________________________________________________________
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
<PAGE>
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Security.
