As filed with the Securities and Exchange Commission on
April 29, 2011
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CELANESE CORPORATION
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of
incorporation or organization)
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98-0420726
(I.R.S. Employer
Identification Number)
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CELANESE US HOLDINGS
LLC
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of
incorporation or organization)
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20-1206848
(I.R.S. Employer
Identification Number)
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Co-registrants are listed on Schedule A hereto.
(Exact name of registrant as
specified in its charter)
1601 West LBJ Freeway
Dallas, Texas 75234
(972) 443-4000
(Address, including zip
code, and telephone number, including area code, of
registrants principal executive offices)
James R. Peacock III
Vice President, Deputy General Counsel and Assistant Corporate
Secretary
Celanese Corporation
1601 West LBJ Freeway
Dallas, Texas 75234
(972) 443-4000
(Name, address, including
zip code, and telephone number, including area code, of agent
for service)
With a copy to:
Andrew L. Fabens, Esq.
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY
10166-0193
(212) 351-4000
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
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If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
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If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
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If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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maximum
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maximum
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Amount to be
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offering price
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aggregate
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Amount of
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Title of each class of securities to be registered
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registered
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per unit
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offering price
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registration fee
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Series A Common Stock (par value $0.0001 per share) and
Preferred Stock (par value $0.01 per share) of Celanese
Corporation
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(1
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(1
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(1
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(1
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Debt Securities of Celanese US Holdings LLC and Guarantees of
Debt Securities(2)
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(1)
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An indeterminate aggregate initial
offering price or number of securities of each identified class
is being registered as may from time to time be offered at
indeterminate prices. There is also being registered hereby such
indeterminate number of shares of Series A common stock and
preferred stock as may be issued pursuant to anti-dilution
provisions of registered securities, or upon conversion or
exchange of debt securities of Celanese US Holdings or preferred
stock, in accordance with the terms of such registered
securities, as the case may be. In addition, pursuant to
Rule 416 under the Securities Act of 1933, as amended
(Securities Act), the securities registered hereunder include
such indeterminate number of securities as may be issuable with
respect to the securities being registered hereunder as a result
of stock splits, stock dividends or similar transactions. The
Registrants are deferring payment of the registration fee
pursuant to Rule 456(b) and are omitting this information
in reliance on Rule 456(b) and Rule 457(r) under the
Securities Act.
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(2)
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The debt securities will be
guaranteed by Celanese Corporation, which is the parent of
Celanese US Holdings LLC, and may be guaranteed by the direct
and indirect wholly-owned subsidiaries of Celanese US Holdings
LLC listed on the following page. Pursuant to Rule 457(n)
under the Securities Act, no separate fee for the guarantees is
payable.
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Schedule A
Subsidiary Guarantors
The following direct and indirect wholly-owned subsidiaries of
Celanese US Holdings LLC may guarantee the debt securities
issued hereunder and are co-registrants with Celanese
Corporation and Celanese US Holdings LLC under this registration
statement.
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Jurisdiction of
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I.R.S. Employer
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Name
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Formation
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Identification No.
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Celanese Americas LLC
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Delaware
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22-1862783
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Celanese Acetate LLC
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Delaware
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56-2051387
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Celanese Chemicals, Inc.
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Delaware
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13-2916623
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Celanese Fibers Operations LLC
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Delaware
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13-3373680
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CNA Holdings LLC
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Delaware
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13-5568434
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Celanese International Corporation
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Delaware
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75-2622529
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Celtran, Inc.
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Delaware
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56-0818166
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CNA Funding LLC
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Delaware
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22-3847453
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KEP Americas Engineering Plastics, LLC
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Delaware
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22-3537574
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Ticona Fortron Inc.
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Delaware
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22-3140276
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Ticona Polymers, Inc.
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Delaware
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13-3313358
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Ticona LLC
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Delaware
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22-3546190
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Celanese Global Relocation LLC
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Delaware
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41-2243055
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Celanese Ltd.
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Texas
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75-2622526
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PROSPECTUS
Celanese Corporation
SERIES A
COMMON STOCK
PREFERRED STOCK
GUARANTEES OF DEBT SECURITIES
Celanese US Holdings
LLC
DEBT
SECURITIES
Celanese Corporation
and/or
Celanese US Holdings LLC, a wholly-owned subsidiary of Celanese
Corporation, may offer from time to time to sell one or more of
the securities described in this prospectus separately or
together in any combination. The direct and indirect
wholly-owned subsidiaries of Celanese US Holdings LLC that are
identified as co-registrants in the registration statement
containing this prospectus may guarantee the debt securities of
Celanese US Holdings LLC.
Each time we offer securities using this prospectus, we will
provide specific terms and offering prices in supplements to
this prospectus. The prospectus supplements may also add, update
or change the information contained in this prospectus and will
also describe the specific manner in which we will offer these
securities. You should carefully read this prospectus and the
applicable prospectus supplement, including the information
incorporated by reference, prior to investing in our securities.
We may offer and sell the securities on a continuous or delayed
basis directly to investors or through underwriters, dealers or
agents, or through a combination of these methods. The names of
any underwriters, dealers or agents will be included in a
prospectus supplement. If any agents, dealers or underwriters
are involved in the sale of any securities, the applicable
prospectus supplement will set forth any commissions or
discounts.
Celanese Corporations Series A common stock is listed
on the New York Stock Exchange under the symbol CE.
The principal executive offices of Celanese Corporation and
Celanese US Holdings LLC are located at 1601 West LBJ
Freeway, Dallas, Texas 75234, and the telephone number for each
is
(972) 443-4000.
Investing in our securities involves risks. We discuss risk
factors relating to our company in filings we make with the
Securities and Exchange Commission, including under Risk
Factors in our most recently filed Annual Report on
Form 10-K
and in our subsequent periodic filings. The prospectus
supplement relating to a particular offering of securities may
discuss certain risks of investing in those securities. You
should carefully consider these risk factors and risks before
deciding to purchase any securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
April 29, 2011.
IMPORTANT
INFORMATION ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission (SEC) as a
well-known seasoned issuer as defined in
Rule 405 under the Securities Act of 1933, as amended
(Securities Act), using a shelf registration
process. Under this shelf process, we may sell any combination
of the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities offered by us. Each time we sell
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also add to, update or change
information contained in this prospectus; accordingly, to the
extent inconsistent, information in this prospectus is
superseded by the information in the prospectus supplement. The
prospectus supplement to be attached to the front of this
prospectus may describe, as applicable: the terms of the
securities offered, the initial public offering price, the price
paid for the securities by any underwriters, net proceeds, the
plan of distribution and the other specific terms related to the
offering of the securities.
You should rely only on the information in this prospectus, and
any supplement to this prospectus, including the information
incorporated by reference. We have not authorized any other
person to provide you with different information. If anyone
provides you with different or inconsistent information, you
should not rely on it. We are not making an offer to sell the
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing or
incorporated by reference in this prospectus and any prospectus
supplement is accurate only as of the date indicated on the
front cover of these documents or the date of the document
incorporated by reference. Our business, financial condition,
results of operations, and other information contained in the
prospectus and any prospectus supplement may have changed since
that date.
As used throughout this prospectus, unless the context otherwise
requires or indicates:
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Celanese means Celanese Corporation, and not its
subsidiaries;
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Celanese US means Celanese US Holdings LLC, a
wholly-owned subsidiary of Celanese, and not its
subsidiaries; and
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Company, we, our and
us refer to Celanese and its subsidiaries, including
Celanese US, on a consolidated basis.
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain parts of this prospectus and any prospectus supplement,
and the documents incorporated by reference contain
forward-looking statements, as defined in Section 27A of
the Securities Act, Section 21E of the Securities Exchange
Act of 1934, as amended (Exchange Act), and the Private
Securities Litigation Reform Act of 1995. You can identify these
statements by the fact that they do not relate to matters of a
strictly factual or historical nature and generally discuss or
relate to forecasts, estimates or other expectations regarding
future events. Generally, words such as anticipate,
believe, estimate, expect,
intend, plan, project,
may, can, could,
might, will and similar expressions, as
they relate to us, are intended to identify forward-looking
statements. These statements reflect our current views and
beliefs with respect to future events at the time that the
statements are made, are not historical facts or guarantees of
future performance and are subject to significant risks,
uncertainties and other factors that are difficult to predict
and many of which are outside of our control. Further, certain
forward-looking statements are based upon assumptions as to
future events that may not prove to be accurate and,
accordingly, should not have undue reliance placed upon them.
The following factors could cause our actual results to differ
materially from those results, performance or achievements that
may be expressed or implied by such forward-looking statements.
These factors include, among other things:
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changes in general economic, business, political and regulatory
conditions in the countries or regions in which we operate;
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the length and depth of product and industry business cycles
particularly in the automotive, electrical, textiles,
electronics and construction industries;
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changes in the price and availability of raw materials,
particularly changes in the demand for, supply of, and market
prices of ethylene, methanol, natural gas, wood pulp and fuel
oil and the prices for electricity and other energy sources;
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the ability to pass increases in raw material prices on to
customers or otherwise improve margins through price increases;
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the ability to maintain plant utilization rates and to implement
planned capacity additions and expansions;
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the ability to reduce or maintain at their current levels
production costs and improve productivity by implementing
technological improvements to existing plants;
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increased price competition and the introduction of competing
products by other companies;
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changes in the degree of intellectual property and other legal
protection afforded to our products or technologies;
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costs and potential disruption or interruption of production due
to accidents or other unforeseen events or delays in
construction of facilities;
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potential liability for remedial actions and increased costs
under existing or future environmental regulations, including
those relating to climate change;
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potential liability resulting from pending or future litigation,
or from changes in the laws, regulations or policies of
governments or other governmental activities in the countries in
which we operate;
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changes in currency exchange rates and interest rates;
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our level of indebtedness, which could diminish our ability to
raise additional capital to fund operations or limit our ability
to react to changes in the economy or the chemicals
industry; and
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various other factors, both referenced and not referenced in
this prospectus.
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Additional information regarding these and other factors may be
contained in our filings with the SEC incorporated herein by
reference, especially on
Forms 10-K,
10-Q
and
8-K.
Many of
these factors are macroeconomic in nature and are, therefore,
beyond our control. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions
prove incorrect, our actual results, performance or achievements
may vary materially from those described in this prospectus as
anticipated, believed, estimated, expected, intended, planned or
projected. Except as required by law, we neither intend nor
undertake any obligation, and disclaim any duty to update these
forward-looking statements, which speak only as of their
respective dates.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our filings with the SEC are
available at the SECs EDGAR website at www.sec.gov. You
may read and copy any document that we file with the SEC at the
SECs Public Reference Room at the following address:
100 F Street,
N.E.
Washington, D.C. 20549
You can call the SEC at
1-800-SEC-0330
for more information about the operation of the Public Reference
Room. Our SEC filings are also available at the offices of the
New York Stock Exchange (NYSE), 20 Broad Street, New York,
New York 10005. For further information on obtaining copies of
our public filings at the NYSE, you can call
(212) 656-5060.
We also make available free of charge on or through our website,
www.celanese.com, our Annual Report on
Form 10-K,
Quarterly Reports on
Form 10-Q,
Current Reports on
Form 8-K
and amendments to those reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Exchange Act, as soon as
reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. Information contained
on our Internet website is not part of this prospectus.
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INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference the
information that we file with them. This means that we can
disclose important information to you by referring you to
information and documents that we have filed with the SEC. Any
information that we refer to in this manner is considered part
of this prospectus. Information that we later provide to the
SEC, and which is deemed filed with the SEC, will
automatically update information previously filed with the SEC,
and may replace information in this prospectus and information
previously filed with the SEC. We specifically are incorporating
by reference the following documents (other than, in each case,
documents or information deemed to have been furnished and not
filed in accordance with SEC rules):
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our Annual Report on
Form 10-K
for the year ended December 31, 2010, filed with the SEC
on
February 11, 2011;
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our Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2011, filed with the SEC
on
April 26, 2011;
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our current reports on
Form 8-K
filed with the SEC on January 6, 2011, February 15,
2011 (Item 5.02 information only), April 7, 2011, and
April 25, 2011; and
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the description of our Series A common stock, par value
$0.0001, contained in our
Form 8-A
filed on
January 18, 2005.
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We also incorporate by reference any future filings we make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act until we sell all of the securities registered by
this registration statement, with the exception of any
information furnished to, and not deemed file with, the SEC.
You may request a free copy of any documents referred to above,
including exhibits specifically incorporated by reference in
those documents, by contacting us at the following address and
telephone number:
Celanese
Corporation
Attention: Investor Relations
1601 West LBJ Freeway
Dallas, Texas 75234
Telephone:
(972) 443-4000
OUR
COMPANY
We are a global technology and specialty materials company. We
are one of the worlds largest producers of acetyl
products, which are intermediate chemicals, for nearly all major
industries, as well as a leading global producer of high
performance engineered polymers that are used in a variety of
high-value applications. For more information about our
business, please refer to the Business section in
our most recent Annual Report on
Form 10-K
filed with the SEC and incorporated by reference in this
prospectus and the Managements Discussion and
Analysis of Financial Condition and Results of Operations
sections of our most recent Annual Report on
Form 10-K
and our Quarterly Reports on
Form 10-Q
filed with the SEC and incorporated by reference in this
prospectus.
SUBSIDIARY
GUARANTORS
Our subsidiary co-registrants, which we refer to as
subsidiary guarantors, may fully and unconditionally
guarantee any series of debt securities offered by this
prospectus and related prospectus supplement. The applicable
prospectus supplement for that series of debt securities will
describe the terms of the guarantee by the subsidiary
guarantors. The subsidiary guarantors are U.S. subsidiaries
which are all direct or indirect, wholly-owned subsidiaries of
Celanese US.
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USE OF
PROCEEDS
Except as may be stated in the applicable prospectus supplement,
we intend to use the net proceeds from any sale of the
securities for general corporate purposes, including repayment
or refinancing of debt, acquisitions, working capital, capital
expenditures and repurchases and redemptions of securities.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth information regarding our ratio
of earnings to fixed charges for the periods shown. In
calculating the ratio of earnings to fixed charges, earnings
represent the sum of (i) earnings (loss) from continuing
operations before taxes, (ii) income distributions from
equity method investees, (iii) amortization of capitalized
interest and (iv) total fixed charges, minus equity in net
earnings of affiliates. Fixed charges represent the sum of
(i) interest expense, (ii) capitalized interest,
(iii) the estimated interest portion of rent expense,
(iv) cumulative preferred stock dividends and
(v) guaranteed payments to minority stockholders.
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Three Months
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Ended March 31,
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Year Ended December 31,
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2011
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2010
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2009
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2008
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2007
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2006
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Ratio of earnings to fixed charges
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4.0
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2.9
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1.9
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2.4
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2.3
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2.6
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DESCRIPTION
OF CAPITAL STOCK
The following is a summary of select provisions of
Celaneses capital stock, as well as other certain
provisions of Celaneses Second Amended and Restated
Certificate of Incorporation (Charter) and Third Amended and
Restated By-laws (By-laws). The descriptions set forth below are
qualified in their entirety by reference to the relevant
provisions of the Charter and By-laws, copies of which have been
filed as exhibits to the registration statement of which this
prospectus forms a part.
Authorized
Capitalization
As of March 31, 2011, Celaneses authorized capital
stock consisted of (i) 500,000,000 shares of common
stock, par value $0.0001 per share, consisting of
400,000,000 shares of Series A common stock (Common
Stock) of which 178,384,999 shares were issued and
156,046,321 shares were outstanding, and
100,000,000 shares of Series B common stock of which
none were issued and outstanding, and
(ii) 100,000,000 shares of preferred stock, par value
$0.01 per share, of which none were issued and outstanding.
Following the payment of a special dividend to holders of
Celanese Series B common stock in April 2005, all of the
then outstanding shares of Series B common stock
automatically converted into shares of Celanese Series A
common stock pursuant to our Charter.
Common
Stock
Voting Rights.
Holders of Common Stock are entitled to
one vote per share on all matters with respect to which the
holders of Common Stock are entitled to vote. The holders of
Common Stock do not have cumulative voting rights in the
election of directors.
Dividend Rights.
Holders of Common Stock are entitled to
receive dividends if, as and when dividends are declared from
time to time by Celaneses board of directors out of funds
legally available for that purpose, after payment of dividends
required to be paid on outstanding preferred stock, as described
below, if any. The Companys senior credit facilities and
indentures impose restrictions on its ability to declare
dividends with respect to Celaneses Common Stock. Any
decision to declare and pay dividends in the future will be made
at the discretion of the board of directors and will depend on,
among other things, results of operations, cash requirements,
financial condition, contractual restrictions and factors that
the board of directors may deem relevant.
Liquidation Rights.
Upon liquidation, dissolution or
winding up, the holders of Common Stock will be entitled to
receive ratably the assets available for distribution to the
stockholders after payment of liabilities and accrued but unpaid
dividends and liquidation preferences on any outstanding
preferred stock.
Other Matters.
The Common Stock has no preemptive rights
and, if fully paid, is not subject to further calls or
assessment by Celanese. There are no redemption or sinking fund
provisions applicable to the Common Stock. All shares of
Celaneses outstanding Common Stock are fully paid and
non-assessable, and the shares of Celaneses
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Common Stock offered under this registration statement, upon
payment and delivery in accordance with the underwriting
agreement, will be fully paid and non-assessable.
Preferred
Stock
Celaneses Charter authorizes the board of directors to
establish one or more series of preferred stock and to
determine, with respect to any series of preferred stock, the
terms and rights of that series, including:
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the designation of the series;
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the number of shares of the series, which the board of directors
may, except where otherwise provided in the preferred stock
designation, increase (but not above the total number of
authorized shares of the class) or decrease (but not below the
number of shares then outstanding);
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whether dividends, if any, will be cumulative or non-cumulative
and the dividend rate of the series;
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the dates at which dividends, if any, will be payable;
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the redemption rights and price or prices, if any, for shares of
the series;
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the terms and amounts of any sinking fund provided for the
purchase or redemption of shares of the series;
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the amounts payable on shares of the series in the event of any
voluntary or involuntary liquidation, dissolution or
winding-up
of the affairs of Celanese;
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whether the shares of the series will be convertible into shares
of any other class or series, or any other security, of Celanese
or any other corporation, and, if so, the specification of the
other class or series or other security, the conversion price or
prices or rate or rates, any rate adjustments, the date or dates
as of which the shares will be convertible and all other terms
and conditions upon which the conversion may be made;
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restrictions on the issuance of shares of the same series or of
any other class or series; and
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the voting rights, if any, of the holders of the series.
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Anti-Takeover
Effects of Certain Provisions of Our Charter and
By-laws
Certain provisions of Celaneses Charter and By-laws, which
are summarized in the following paragraphs, may have an
anti-takeover effect and may delay, defer or prevent a tender
offer or takeover attempt that a stockholder might consider in
its best interest, including those attempts that might result in
a premium over the market price for the shares held by
stockholders.
Classified
Board of Directors
Celaneses Charter provides that the board of directors
will be divided into three classes of directors, with the
classes to be as nearly equal in number as possible. The members
of each class serve for a three-year term. As a result,
approximately one-third of the board of directors will be
elected each year. The classification of directors will have the
effect of making it more difficult for stockholders to change
the composition of the board of directors. Celaneses
Charter and the By-laws provide that the number of directors
will be fixed from time to time pursuant to a resolution adopted
by the board of directors, but must consist of not less than
seven or more than fifteen directors.
Removal
of Directors
Celaneses Charter and By-laws provide that directors may
be removed only for cause and only upon the affirmative vote of
holders of at least 80% of the voting power of all the then
outstanding shares of stock entitled to vote generally in the
election of directors, voting together as a single class. In
addition, Celaneses Charter also provides that any newly
created directorships and any vacancies on the board of
directors will be filled only by the affirmative vote of the
majority of remaining directors.
No
Cumulative Voting
The Delaware General Corporation Law (DGCL) provides that
stockholders are not entitled to the right to cumulate votes in
the election of directors unless the charter provides otherwise.
Celaneses Charter does not expressly provide for
cumulative voting.
5
Calling
of Special Meetings of Stockholders; Stockholder Action by
Written Consent
Celaneses Charter provides that a special meeting of
stockholders may be called at any time only by the chairman of
the board of directors, the board or a committee of the board of
directors which has been granted such authority by the board.
The DGCL permits stockholder action by written consent unless
otherwise provided by a companys charter. Celaneses
Charter precludes stockholder action by written consent.
Advance
Notice Requirements for Stockholder Proposals and Director
Nominations
Celaneses By-laws provide that stockholders seeking to
nominate candidates for election as directors or to bring
business before an annual meeting of stockholders must provide
timely notice of their proposal in writing to the corporate
secretary.
Generally, to be timely, a stockholders notice must be
received at Celaneses principal executive offices not less
than 90 days nor more than 120 days prior to the first
anniversary date on which the proxy materials for the previous
years annual meeting were first mailed. Celaneses
By-laws also specify requirements as to the form and content of
a stockholders notice. These provisions may impede
stockholders ability to bring matters before an annual
meeting of stockholders or make nominations for directors at an
annual meeting of stockholders.
Supermajority
Provisions
The DGCL provides generally that the affirmative vote of a
majority of the outstanding shares entitled to vote is required
to amend a corporations certificate of incorporation or
by-laws, unless the certificate of incorporation requires a
greater percentage. Celaneses Charter provides that the
following provisions in the Charter and By-laws may be amended
only by a vote of at least 80% of the voting power of all of the
outstanding shares of our stock entitled to vote in the election
of directors, voting together as a single class:
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classified board (the election and term of directors);
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the resignation and removal of directors;
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the provisions regarding stockholder action by written consent;
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the ability to call a special meeting of stockholders being
vested solely in the chairman of the board of directors, the
board of directors, or a committee of the board of directors (if
duly authorized to call special meetings);
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filling of vacancies on the board of directors and newly created
directorships;
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the advance notice requirements for stockholder proposals and
director nominations; and
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the amendment provision requiring that the above provisions be
amended only with an 80% supermajority vote.
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In addition, Celaneses Charter grants the board of
directors the authority to amend and repeal the By-laws without
a stockholder vote in any manner not inconsistent with the laws
of the State of Delaware or Celaneses Charter.
Limitations
on Liability and Indemnification of Officers and
Directors
The DGCL authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their
stockholders for monetary damages for breaches of
directors fiduciary duties. Celaneses Charter
includes a provision that eliminates the personal liability of
directors for monetary damages for actions taken as a director,
except for liability:
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for breach of duty of loyalty;
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for acts or omissions not in good faith or involving intentional
misconduct or knowing violation of law;
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under Section 174 of the DGCL (unlawful dividends or stock
repurchases and redemptions); or
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for transactions from which the director derived improper
personal benefit.
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Celaneses Charter and By-laws provide that the company
must indemnify its directors and officers to the fullest extent
authorized by the DGCL. Celanese is also expressly authorized to
advance certain expenses (including
6
attorneys fees and disbursements and court costs) and
carry directors and officers insurance providing
indemnification for directors, officers and certain employees
for some liabilities. We believe that these indemnification
provisions and insurance are useful to attract and retain
qualified directors and executive officers.
The limitation of liability and indemnification provisions in
Celaneses Charter and By-laws may discourage stockholders
from bringing a lawsuit against directors for breach of their
fiduciary duty. These provisions may also have the effect of
reducing the likelihood of derivative litigation against
directors and officers, even though such an action, if
successful, might otherwise benefit the company and its
stockholders. In addition, your investment may be adversely
affected to the extent we pay the costs of settlement and damage
awards against directors and officers pursuant to these
indemnification provisions.
There is currently no pending material litigation or proceeding
involving any of Celaneses directors, officers or
employees for which indemnification is sought.
Delaware
Anti-takeover Statute
Section 203 of the DGCL applies to Celanese. Under certain
circumstances, Section 203 limits the ability of an
interested stockholder to effect various business combinations
with Celanese for a three-year period following the time that
such stockholder becomes an interested stockholder. For purposes
of Section 203, a business combination is
broadly defined to include mergers, asset sales and other
transactions resulting in a financial benefit to the interested
stockholder. An interested stockholder is a person
who, together with affiliates and associates, owns, or within
the immediately preceding three years did own, 15% or more of
Celaneses voting stock.
An interested stockholder may not engage in a business
combination transaction with Celanese within the three-year
period unless:
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before the stockholder became an interested stockholder, the
board approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder;
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upon consummation of the transaction in which the stockholder
became an interested stockholder, the interested stockholder
owned at least 85% of Celaneses voting stock (excluding
shares owned by officers, directors or certain employee stock
purchase plans); or
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at or subsequent to such time the business combination is
approved by the board and authorized at an annual or special
meeting of stockholders, and not by written consent, by the
affirmative vote of at least
66
2
/
3
%
of the outstanding voting stock which is not owned by the
interested stockholder.
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Transfer
Agent and Registrar
Computershare Trust Company, N.A. is the transfer agent and
registrar for Celaneses Common Stock.
Listing
Celaneses Common Stock is listed on the NYSE under the
symbol CE.
Authorized
but Unissued Capital Stock
The DGCL does not require stockholder approval for any issuance
of authorized shares. However, the listing requirements of the
NYSE, which would apply so long as Celaneses Common Stock
is listed on the NYSE, require stockholder approval of certain
issuances equal to or exceeding 20% of the then-outstanding
voting power or then outstanding number of shares of Common
Stock. These additional shares may be used for a variety of
corporate purposes, including future public offerings, to raise
additional capital or to facilitate acquisitions.
One of the effects of the existence of unissued and unreserved
common stock may be to enable Celaneses board of directors
to issue shares to persons friendly to current management, which
issuance could render more difficult or discourage an attempt to
obtain control of the company by means of a merger, tender
offer, proxy contest or otherwise, and thereby protect the
continuity of management and possibly deprive the stockholders
of opportunities to sell their shares of common stock at prices
higher than prevailing market prices.
7
DESCRIPTION
OF DEBT SECURITIES
AND GUARANTEES
The following is a general description of the debt securities
that we may offer from time to time. The particular terms of the
debt securities offered by any prospectus supplement and the
extent, if any, to which the general provisions described below
may apply to those securities will be described in the
applicable prospectus supplement. As you read this section,
please remember that the specific terms of a debt security as
described in the applicable prospectus supplement will
supplement and may modify or replace the general terms described
in this section. If there are any differences between the
applicable prospectus supplement and this prospectus, the
applicable prospectus supplement will control. As a result, the
statements we make in this section may not apply to the debt
security you purchase.
The registered holder of any debt security will be treated as
the owner of it for all purposes. Only registered holders will
have rights under the applicable indenture.
General
The debt securities that we may offer will be either senior debt
securities or subordinated debt securities. Any senior debt
securities will be issued under an indenture, which we refer to
as the senior indenture, to be entered into between us and the
trustee named in the applicable prospectus supplement. Any
subordinated debt securities will be issued under a different
indenture, which we refer to as the subordinated indenture, to
be entered into between us and the trustee named in the
applicable prospectus supplement. We refer to both the senior
indenture and the subordinated indenture as the indentures, and
to each of the trustees under the indentures as a trustee. In
addition, the indentures may be supplemented or amended as
necessary to set forth the terms of the debt securities issued
under the indentures. You should read the indentures, including
any amendments or supplements, carefully to fully understand the
terms of the debt securities. The terms of the debt securities
will include those stated in the indentures and those made part
of the indentures by reference to the Trust Indenture Act
of 1939.
Any senior debt securities that Celanese US may issue will be
our unsubordinated obligations. They will rank equally with each
other and all of our other unsubordinated debt, unless otherwise
indicated in the applicable prospectus supplement. Any
subordinated debt securities that Celanese US may issue will be
subordinated in right of payment to the prior payment in full of
our senior debt. See Ranking. The subordinated debt
securities will rank equally with each other, unless otherwise
indicated in the applicable prospectus supplement. We will
indicate in each applicable prospectus supplement, as of the
most recent practicable date, the aggregate amount of our
outstanding debt that would rank senior to the subordinated debt
securities.
The indentures will not limit the amount of debt securities that
can be issued thereunder and will provide that debt securities
of any series may be issued thereunder up to the aggregate
principal amount that we may authorize from time to time. Unless
otherwise provided in the applicable prospectus supplement, the
indentures will not limit the amount of other indebtedness or
securities that Celanese US may issue. Celanese US may issue
debt securities of the same series at more than one time and,
unless prohibited by the terms of the series, we may reopen a
series for issuances of additional debt securities without the
consent of the holders of the outstanding debt securities of
that series. All debt securities issued as a series, including
those issued pursuant to any reopening of a series, will vote
together as a single class.
Reference is made to the prospectus supplement for the following
and other possible terms of each series of the debt securities
with respect to which this prospectus is being delivered:
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the title of the debt securities;
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any limit upon the aggregate principal amount of the debt
securities of that series that may be authenticated and
delivered under the applicable indenture, except for debt
securities authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, other debt
securities of that series;
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the date or dates on which the principal and premium, if any, of
the debt securities of the series is payable;
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the rate or rates, which may be fixed or variable, at which the
debt securities of the series shall bear interest or the manner
of calculation of such rate or rates, if any, including any
procedures to vary or reset such rate
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or rates, and the basis upon which interest will be calculated
if other than that of a
360-day
year
of twelve
30-day
months;
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the place or places where the principal of and interest, if any,
on the debt securities of the series shall be payable, where the
debt securities of such series may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon us with respect to the debt securities of
such series and the applicable indenture may be served, and the
method of such payment, if by wire transfer, mail or other means
if other than as set forth in the applicable indenture;
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the date or dates from which such interest shall accrue, the
dates on which such interest will be payable or the manner of
determination of such dates, and the record date for the
determination of holders to whom interest is payable on any such
dates;
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any trustees, authenticating agents or paying agents with
respect to such series, if different from those set forth in the
applicable indenture;
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the right, if any, to extend the interest payment periods or
defer the payment of interest and the duration of such extension
or deferral;
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if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which, debt
securities of the series may be redeemed, in whole or in part,
at our option;
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our obligation, if any, to redeem, purchase or repay debt
securities of the series pursuant to any sinking fund or
analogous provisions, including payments made in cash in
anticipation of future sinking fund obligations, or at the
option of a holder thereof and the period or periods within
which, the price or prices at which, and the terms and
conditions upon which, debt securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to
such obligation;
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the form of the debt securities of the series including the form
of the trustees certificate of authentication for such
series;
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if other than denominations of $1,000 or integral multiples of
$1,000 in excess thereof, the denominations in which the debt
securities of the series shall be issuable;
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the currency or currencies in which payment of the principal of,
premium, if any, and interest on, debt securities of the series
shall be payable;
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if the principal amount payable at the stated maturity of debt
securities of the series will not be determinable as of any one
or more dates prior to such stated maturity, the amount which
will be deemed to be such principal amount as of any such date
for any purpose, including the portion of the principal amount
thereof that will be due and payable upon declaration of
acceleration of the maturity thereof or upon any maturity other
than the stated maturity or that will 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;
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the terms of any repurchase or remarketing rights;
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if the debt securities of the series shall be issued in whole or
in part in the form of a global security or securities, the type
of global security to be issued; the terms and conditions, if
different from those contained in the applicable indenture, upon
which such global security or securities may be exchanged in
whole or in part for other individual securities in definitive
registered form; 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 legends referred to in the indenture;
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whether the debt securities of the series will be convertible
into or exchangeable for other securities, and, if so, the terms
and conditions upon which such debt securities will be so
convertible or exchangeable, including the initial conversion or
exchange price or rate or the method of calculation, how and
when the conversion price or exchange ratio may be adjusted,
whether conversion or exchange is mandatory, at the option of
the holder or at our option, the conversion or exchange period,
and any other provision in addition to or in lieu of those
described herein;
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any additional restrictive covenants or events of default that
will apply to the debt securities of the series, or any changes
to the restrictive covenants set forth in the applicable
indenture that will apply to the debt securities of the series,
which may consist of establishing different terms or provisions
from those set forth in the applicable indenture or eliminating
any such restrictive covenant or event of default with respect
to the debt securities of the series;
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any provisions granting special rights to holders when a
specified event occurs;
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if the amount of principal or any premium or interest on debt
securities of a series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts
will be determined;
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any special tax implications of the debt securities, including
provisions for original issue discount securities, if offered;
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whether and upon what terms debt securities of a series may be
defeased if different from the provisions set forth in the
applicable indenture;
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with regard to the debt securities of any series that do not
bear interest, the dates for certain required reports to the
trustee;
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whether the debt securities of the series will be issued as
unrestricted securities or restricted securities, and, if issued
as restricted securities, the rule or regulation promulgated
under the Securities Act in reliance on which they will be sold;
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any guarantees on the debt securities, supplemental to the
guarantee by Celanese, and the terms and conditions upon which
any guarantees, including the guarantee by Celanese, may be
released or terminated;
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the provisions, if any, relating to any security provided for
the debt securities of the series;
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any depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to debt
securities of such series if other than those appointed in the
applicable indenture;
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if the debt securities are subordinated debt securities, the
subordination terms of the debt securities; and
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any and all additional, eliminated or changed terms that shall
apply to the debt securities of the series, including any terms
that may be required by or advisable under United States laws or
regulations, including the Securities Act and the rules and
regulations promulgated thereunder, or advisable in connection
with the marketing of debt securities of that series.
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We will comply with Section 14(e) under the Exchange Act,
to the extent applicable, and any other tender offer rules under
the Exchange Act that may then be applicable, in connection with
any obligation to purchase debt securities at the option of the
holders thereof. Any such obligation applicable to a series of
debt securities will be described in the prospectus supplement
relating thereto.
Unless otherwise described in a prospectus supplement relating
to any debt securities, there will be no covenants or provisions
contained in the indentures that may afford the holders of debt
securities protection in the event that we enter into a highly
leveraged transaction.
The statements made hereunder relating to the indentures and any
debt securities that Celanese US may issue are summaries of
certain provisions thereof and are qualified in their entirety
by reference to all provisions of the indentures and the debt
securities and the descriptions thereof, if different, in the
applicable prospectus supplement.
Payments
on the Debt Securities
Principal of, premium, if any, and interest on the debt
securities will be payable at the office or agency maintained by
Celanese US for such purposes;
provided
that all payments
of principal, premium, if any, and interest with respect to the
debt securities represented by one or more global securities
registered in the name of or held by The Depository
Trust Company (DTC) or its nominee will be made through the
facilities of DTC. Until otherwise designated by Celanese US,
Celanese USs office or agency will be the office of the
trustee maintained for such purpose.
10
Paying
Agent and Registrar for the Debt Securities
The trustee will initially act as paying agent and registrar.
Celanese US may change the paying agent or registrar without
prior notice to the holders, and Celanese US, Celanese or any of
their subsidiaries may act as paying agent or registrar.
Transfer
and Exchange
A holder may transfer or exchange debt securities in accordance
with the applicable indenture. Holders will be required to pay
all taxes due on transfer. Celanese US will not be required to
transfer or exchange any debt security selected for redemption
or repurchase. Also, Celanese US will not be required to
transfer or exchange any debt security for a period of
15 days before a selection of debt securities to be
redeemed or repurchased.
Guarantees
The debt securities of any series will be guaranteed by Celanese
and, to the extent specified in the applicable prospectus
supplement, may be guaranteed by subsidiary guarantors. Each
prospectus supplement will describe, as to the debt securities
to which it relates, any guarantees by the subsidiary
guarantors, including the terms of subordination, if any, of any
such guarantee.
Ranking
Senior
Debt Securities
Any series of senior debt securities will be general obligations
of Celanese US that rank senior in right of payment to all
existing and future indebtedness that is expressly subordinated
in right of payment to the senior debt securities. Any series of
senior debt securities will rank equally in right of payment
with all existing and future liabilities of Celanese US that are
not so subordinated. Any series of senior unsecured debt
securities will be effectively subordinated to all of Celanese
USs secured indebtedness (to the extent of the value of
the assets securing such indebtedness) and liabilities of our
subsidiaries that do not guarantee the series of senior debt
securities.
Subordinated
Debt Securities
We will set forth in the applicable prospectus supplement the
terms and conditions, if any, upon which any series of
subordinated debt securities is subordinated to debt securities
of another series or to our other indebtedness. The terms will
include a description of:
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the indebtedness ranking senior to the debt securities being
offered;
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the restrictions, if any, on payments to the holders of the debt
securities being offered while a default with respect to the
senior indebtedness is continuing; and
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the provisions requiring holders of the debt securities being
offered to remit some payments to the holders of senior
indebtedness.
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Redemption
If specified in the applicable prospectus supplement, we may
redeem the debt securities of any series, as a whole or in part,
at our option on and after the dates and in accordance with the
terms established for such series, if any, in the applicable
prospectus supplement. If we redeem the debt securities of any
series, we also must pay accrued and unpaid interest, if any, to
the date of redemption on such debt securities.
Certain
Covenants
Merger,
Consolidation or Sale of Assets
Neither Celanese US nor Celanese may, directly or indirectly:
(1) consolidate or merge with or into or wind up into
another person (whether or not Celanese US is the surviving
person); or (2) sell, assign, transfer, convey or
11
otherwise dispose of all or substantially all of its properties
or assets, in one or more related transactions, to another
person; unless:
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(1)
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either: (a) Celanese US or Celanese, as the case may be, is
the surviving person; or (b) the person formed by or
surviving any such consolidation or merger (if other than
Celanese US or Celanese, as the case may be) or to which such
sale, assignment, transfer, conveyance or other disposition has
been made is a corporation, limited liability company or limited
partnership organized or existing under the laws of the
jurisdiction of organization of Celanese US or the United
States, any state of the United States, the District of Columbia
or any territory thereof (Celanese US or such person, as the
case may be, hereinafter referred to as the Successor Company);
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(2)
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the Successor Company (if other than Celanese US or Celanese, as
the case may be) expressly assumes all the obligations of
Celanese US or Celanese, as the case may be, under the debt
securities and the applicable indenture;
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(3)
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immediately after such transaction no default or Event of
Default exists; and
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(4)
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Celanese US or Celanese, as the case may be, shall have
delivered to the trustee a certificate from a responsible
officer and an opinion of counsel, each stating that such
consolidation, merger or transfer and such amendment or
supplement (if any) comply with the applicable indenture.
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The Successor Company will succeed to, and be substituted for,
Celanese US or Celanese, as the case may be, under the
applicable indenture and the debt securities.
Reports
So long as any debt securities are outstanding, Celanese US
shall file with the trustee, within 15 days after Celanese
files with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the forgoing as the SEC may from time to time
by rules and regulations prescribe) that Celanese may be
required to file with the SEC pursuant to Section 13 or
Section 15(d) of the Exchange Act. Celanese US shall be
deemed to have complied with the previous sentence to the extent
that such information, documents and reports are filed with the
SEC via EDGAR, or any successor electronic delivery procedure.
Delivery of such reports, information and documents to the
trustee is for informational purposes only and the
trustees receipt of such shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including Celanese USs
compliance with any of its covenants under the applicable
indenture (as to which the trustee is entitled to rely
exclusively on officers certificates).
Events of
Default and Remedies
The following will be Events of Default with respect
to debt securities of a particular series, except to the extent
provided in the supplemental indenture or resolution of our
board of directors pursuant to which a series of debt securities
is issued:
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(1)
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Celanese US defaults in payment when due and payable, upon
redemption, acceleration or otherwise, of principal of, or
premium, if any, on the debt securities;
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(2)
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Celanese US defaults in the payment when due of interest on or
with respect to the debt securities and such default continues
for a period of 30 days;
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(3)
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Celanese US defaults in the performance of, or breaches any
covenant, warranty or other agreement contained in the
applicable indenture (other than a default in the performance or
breach of a covenant, warranty or agreement which is
specifically dealt with in clauses (1) or (2) above)
and such default or breach continues for a period of
90 days after the notice specified below;
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(4)
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certain events of bankruptcy affecting Celanese US;
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(5)
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Celaneses guarantee with respect to such series of
securities shall for any reason cease to be, or shall for any
reason be asserted in writing by Celanese or Celanese US not to
be, in full force and effect and enforceable in accordance with
its terms except to the extent contemplated by the applicable
indenture and such guarantee; or
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(6)
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any other Event of Default provided in the applicable
supplemental indenture or resolution of the board of directors
under which such series of securities is issued or in the form
of security for such series.
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A default under one series of debt securities issued under the
indenture will not necessarily be a default under another series
of debt securities under the indenture. The trustee may withhold
notice to the holders of a series of debt securities issued
under such indenture of any default or event of default (except
in any payment on the debt securities of such series) if the
trustee considers it in the interest of the holders of the debt
securities of that series to do so.
If an Event of Default (other than an Event of Default specified
in clause (4) or (5) above) for a series of debt
securities shall occur and be continuing, the trustee or the
holders of at least 25% in principal amount of outstanding debt
securities of that series may declare the principal of and
accrued interest on such debt securities to be due and payable
by notice in writing to Celanese US and the trustee specifying
the respective Event of Default and that it is a notice of
acceleration (Acceleration Notice), and the same shall
become immediately due and payable. Notwithstanding the
foregoing, if an Event of Default specified in clause (4)
or (5) above occurs and is continuing, then all unpaid
principal of, and premium, if any, and accrued and unpaid
interest on all of the outstanding debt securities shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the trustee or any
holder of the debt securities.
The holders of a majority in principal amount of the debt
securities of such series then outstanding may waive any
existing default or Event of Default and its consequences,
except a default in the payment of the principal of or interest
on such debt securities.
Holders of debt securities of any series may not enforce the
applicable indenture or the debt securities of that series
except as provided in the applicable indenture and under the
Trust Indenture Act of 1939, as amended. Subject to the
provisions of the applicable indenture relating to the duties of
the trustee, the trustee will be under no obligation to exercise
any of its rights or powers under the indenture at the request,
order or direction of any of the holders of the debt securities
of any series, unless such holders have offered to the trustee
reasonable indemnity. Subject to all provisions of the
applicable indenture and applicable law, the holders of a
majority in aggregate principal amount of a series of the then
outstanding debt securities of such series issued under such
indenture will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the
trustee.
Celanese US and Celanese will be required to deliver to the
trustee annually a statement regarding compliance with the
indenture.
No
Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, incorporator or stockholder of
Celanese, Celanese US or any guarantor subsidiary or any direct
or indirect parent entity, as such, will have any liability for
any obligations of Celanese, Celanese US or any guarantor
subsidiary under the debt securities, the indenture, any
guarantee or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each holder of debt
securities by accepting a debt security waives and releases all
such liability. The waiver and release are part of the
consideration for issuance of the debt securities. The waiver
may not be effective to waive liabilities under the federal
securities laws.
Satisfaction
and Discharge of Indenture
The indenture shall cease to be of further effect with respect
to a series of debt securities when either:
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(1)
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Celanese US has delivered to the trustee for cancellation all
outstanding securities of such series, other than any securities
that have been destroyed, lost or stolen and that have been
replaced or paid as provided in the indenture;
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(2)
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all outstanding securities of such series have become due and
payable or are by their terms to become due and payable within
one year or are to be called for redemption within one year
under arrangements satisfactory to the trustee for the giving of
notice of redemption, and Celanese US or Celanese shall have
irrevocably deposited with the trustee as trust funds the entire
amount, in funds or governmental obligations, or a combination
thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay at maturity or
upon redemption all securities of such series; or
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(3)
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Celanese US has properly fulfilled any other means of
satisfaction and discharge that may be set forth in the terms of
the securities of such series.
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In each case, Celanese US will also pay all other sums payable
by it under the indenture with respect to the securities of such
series.
Defeasance
The term defeasance means the discharge of some or all of
Celanese USs obligations under the indenture. If Celanese
US deposits with the trustee funds or government securities
sufficient to make payments on any series of debt securities on
the dates those payments are due and payable, then, at Celanese
USs option, either of the following will occur:
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(1)
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Celanese US and Celanese will be discharged from obligations
with respect to the debt securities of such series (legal
defeasance); or
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(2)
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Celanese US and Celanese will no longer have any obligation to
comply with the restrictive covenants under the indenture, and
the related events of default will no longer apply to us
(covenant defeasance).
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If Celanese US defeases any series of debt securities, the
holders of the defeased debt securities of such series will not
be entitled to the benefits of the indenture under which such
series was issued, except for Celanese USs obligation to
register the transfer or exchange of the debt securities of such
series, replace stolen, lost or mutilated debt securities or
maintain paying agencies and hold moneys for payment in trust.
In the case of covenant defeasance, Celanese USs
obligation to pay principal, premium and interest on the debt
securities of such series will also survive. Celanese US will be
required to deliver to the trustee an opinion of counsel that
the deposit and related defeasance would not cause the holders
of the debt securities of such series to recognize income, gain
or loss for federal income tax purposes. If Celanese US elects
legal defeasance, that opinion of counsel must be based upon a
ruling from the United States Internal Revenue Service or a
change in law to that effect.
Amendment,
Supplement and Waiver
Except as provided in the next two succeeding paragraphs, an
indenture or the debt securities of any series issued thereunder
may be amended or supplemented with the consent of the holders
of at least a majority in principal amount of the debt
securities of each series at the time outstanding that is
affected voting as a single class (including, without
limitation, consents obtained in connection with a purchase of,
or tender offer or exchange offer for, debt securities), and any
existing default or compliance with any provision of the
indenture or the debt securities of any series issued thereunder
may be waived with the consent of the holders of a majority in
principal amount of each series of debt securities at the time
outstanding that is affected voting as a single class
(including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, debt
securities).
Without the consent of each holder affected thereby, an
amendment or waiver may not (with respect to any debt securities
held by a non-consenting holder):
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(1)
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reduce the amount of debt securities of any series whose holders
must consent to an amendment, supplement or waiver;
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(2)
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reduce the rate of or change the time for payment of interest on
the debt securities of any series;
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(3)
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reduce the principal or change the stated maturity of any debt
securities of any series;
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(4)
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reduce any premium payable on the redemption of any debt
security or change the time at which any debt security may or
must be redeemed;
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(5)
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make payments on any debt security payable in currency other
than as originally stated in such debt security;
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(6)
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impair the holders right to institute suit for the
enforcement of any payment on any debt security;
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(7)
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make any change in the percentage of principal amount of the
debt securities of any series necessary to waive compliance with
certain provisions of the indenture under which such debt
securities were issued or to make any change in this provision
for modification; or
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(8)
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waive a continuing default or event of default regarding any
payment on the debt securities of any series.
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Notwithstanding the preceding, without the consent of any holder
of debt securities, Celanese US, Celanese and the trustee may
amend or supplement an indenture or the applicable debt
securities issued thereunder:
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(1)
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to cure any ambiguity, omission, defect or inconsistency;
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(2)
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to provide for the assumption of the obligations of Celanese or
Celanese US under the indenture by a successor upon any merger,
consolidation or transfer of substantially all of the assets of
Celanese US or Celanese, as applicable;
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(3)
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to provide for uncertificated debt securities in addition to or
in place of certificated debt securities;
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(4)
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to provide any security for or guarantees of the debt securities
or for the addition of an additional obligor on the debt
securities;
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(5)
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to comply with any requirement to effect or maintain the
qualification of the indenture under the Trust Indenture
Act of 1939, as amended, if applicable;
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(6)
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to add covenants that would benefit the holders of any
outstanding series of debt securities or to surrender any rights
of Celanese US or Celanese under the indenture;
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(7)
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to add additional Events of Default with respect to any series
of debt securities;
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(8)
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to change or eliminate any of the provisions of the indenture,
provided that any such change or elimination shall not become
effective with respect to any outstanding debt security of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;
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(9)
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to provide for the issuance of and establish forms and terms and
conditions of a new series of debt securities;
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(10)
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to permit or facilitate the defeasance and discharge of the debt
securities;
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(11)
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to issue additional debt securities of any series; provided that
such additional debt securities have the same terms as, and be
deemed part of the same series as, the applicable series of debt
securities to the extent required under the indenture;
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(12)
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to make any change that does not adversely affect the rights of
any holder of outstanding debt securities in any material
respect; or
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(13)
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to evidence and provide for the acceptance of appointment by a
successor trustee with respect to the debt securities of one or
more series and to add to or change any of the provisions of the
indenture as shall be necessary to provide for or facilitate the
administration of the trust by more than one trustee.
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Concerning
the Trustee
If an Event of Default occurs and is continuing, the trustee
will be required to use the degree of care and skill of a
prudent man in the conduct of his own affairs. The trustee will
become obligated to exercise any of its powers under the
indenture at the request of any of the holders of any debt
securities issued under the indenture only after those holders
have furnished the trustee indemnity reasonably satisfactory
to it.
If the trustee becomes a creditor of ours, it will be subject to
limitations in the indenture on its rights to obtain payment of
claims or to realize on certain property received for any such
claim, as security or otherwise. The trustee is permitted to
engage in other transactions with us. If, however, it acquires
any conflicting interest, it must eliminate such conflict,
resign or obtain an order from the SEC permitting it to remain
as trustee.
Governing
Law
The indentures, the debt securities and the guarantees will be
governed by, and construed in accordance with, the laws of the
State of New York.
15
PLAN OF
DISTRIBUTION
We may sell the securities offered pursuant to this prospectus
in any of the following ways:
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directly to one or more purchasers;
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through agents;
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through underwriters, brokers or dealers; or
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through a combination of any of these methods of sale.
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We will identify the specific plan of distribution, including
any underwriters, brokers, dealers, agents or direct purchasers
and their compensation in the applicable prospectus supplement.
VALIDITY
OF THE SECURITIES
Gibson, Dunn & Crutcher LLP, New York, New York, has
rendered an opinion with respect to the validity of the
securities being offered by this prospectus. We have filed the
opinion as an exhibit to the registration statement of which
this prospectus is a part. If the validity of any securities is
also passed upon by counsel for the underwriters of an offering
of those securities, that counsel will be named in the
prospectus supplement relating to that offering.
EXPERTS
The consolidated financial statements of the Company as of
December 31, 2010 and 2009 and for each of the years in the
three-year period ended December 31, 2010, and
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2010,
have been incorporated by reference herein in reliance upon the
reports of KPMG LLP, independent registered public accounting
firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing. The audit
report covering the consolidated financial statements of the
Company as of December 31, 2010 and 2009 and for each of
the years in the three-year period ended December 31, 2010
refers to the adoption of certain new accounting standards.
The financial statements of CTE Petrochemicals Company as of
December 31, 2010 and 2009 and for each of the three years
in the period ended December 31, 2010, incorporated in this
Prospectus by reference from Celanese Corporations Annual
Report on
Form 10-K
for the year ended December 31, 2010 have been audited by
Deloitte & Touche LLP, independent auditors, as stated
in their report, which is incorporated herein by reference. Such
financial statements have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in
accounting and auditing.
The financial statements of National Methanol Company (Ibn Sina)
as of December 31, 2010 and 2009 and for each of the three
years in the period ended December 31, 2010, incorporated
in this Prospectus by reference from Celanese Corporations
Annual Report on
Form 10-K
for the year ended December 31, 2010 have been audited by
Deloitte & Touche Bakr Abulkhair & Co,
independent auditors, as stated in their report, which is
incorporated herein by reference. Such financial statements have
been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
16
Celanese Corporation
SERIES A COMMON STOCK
PREFERRED STOCK
GUARANTEES OF DEBT SECURITIES
Celanese US Holdings
LLC
DEBT SECURITIES
PROSPECTUS
April 29, 2011
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the costs and expenses payable in
connection with the distribution of the securities being
registered. All amounts are estimated.
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Amount
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SEC registration fee
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$
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(1
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)
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Legal fees and expenses
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(2
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)
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Printing fees and expenses
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(2
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Trustee fees and expenses
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(2
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Blue Sky fees and expenses
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(2
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Accounting fees and expenses
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(2
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Rating agency fees
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(2
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Miscellaneous expenses
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(2
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Total
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$
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(2
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)
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(1)
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To be deferred pursuant to
Rule 456(b) and calculated in connection with the offering
of securities under this registration statement pursuant to
Rule 457(r).
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(2)
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An estimate of the aggregate
amount of these expenses will be reflected in the applicable
prospectus supplement.
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Item 15.
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Indemnification
of Directors and Officers.
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Celanese
Corporation
Celanese Corporation is a Delaware corporation.
Section 145(a) of the Delaware General Corporation Law
(DGCL) provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above,
against expenses actually and reasonably incurred by such person
in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Further subsections of DGCL Section 145 provide that:
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(1)
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to the extent a present or former director or officer of a
corporation has been successful on the merits or otherwise in
the defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145 or in the
defense of any claim, issue or matter therein, such person shall
be indemnified
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II-1
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against expenses, including attorneys fees, actually and
reasonably incurred by such person in connection therewith;
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(2)
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the indemnification and advancement of expenses provided for
pursuant to Section 145 shall not be deemed exclusive of
any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise; and
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(3)
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the corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such persons status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under
Section 145.
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Section 145 of the DGCL makes provision for the
indemnification of officers and directors in terms sufficiently
broad to indemnify officers and directors of Celanese
Corporation under certain circumstances from liabilities
(including reimbursement for expenses incurred) arising under
the Securities Act of 1933, as amended. Celanese
Corporations Certificate of Incorporation and By-laws
provide, in effect, that, to the fullest extent and under the
circumstances permitted by Section 145 of the DGCL,
Celanese Corporation will indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that he or she is or was a director or officer of Celanese
Corporation or is or was serving at the request of Celanese
Corporation as a director or officer of another corporation or
enterprise. Celanese Corporation may, in its discretion,
similarly indemnify its employees and agents.
Celanese Corporation has established an Employee Indemnification
Policy that provides that Celanese Corporation and its
subsidiaries will indemnify and hold harmless each director and
officer against any taxes, interest, penalties, reasonable
expenses (including reasonable counsel fees), judgments,
settlement costs, fines, liabilities, damages, fees or other
charges assessed against, suffered, or incurred by such
indemnified employee in any action, arbitration, audit, hearing,
investigation, litigation, suit or claim (whether criminal,
civil, or administrative) as a direct or indirect result of such
indemnified employees service (i) as an
administrator, fiduciary, officer, trustee, custodian, agent,
employee or other representative of any employee benefit plan
sponsored by Celanese Corporation or its subsidiaries or
(ii) as a director, manager or officer of any of Celanese
Corporations subsidiaries, unless it is finally judicially
determined that: (a) the act, omission, or failure to act
of the indemnified employee was material to the claim; and
(b)(1) the act or omission was committed in bad faith or was the
result of active and deliberate dishonesty, or (2) the
indemnified employee actually received an improper personal
benefit in money, property or services. The Employee
Indemnification Policy also provides for reimbursement of
reasonable expenses (including reasonable legal fees) incurred
in the investigation of any such matter.
To the fullest extent permitted by the DGCL, the By-laws of
Celanese Corporation relieve its directors and officers, and
directors and officers of affiliated subsidiaries, from expenses
incurred in connection with a compelled action brought by or in
the right of Celanese Corporation if such director or officer
acted in good faith and in a manner such director or officer
reasonably believed to not be in or opposed to Celanese
Corporations best interests. However, the By-laws of
Celanese Corporation provide that a director or officer shall
not be indemnified for any claim, issue or matter as to which
such director or officer is adjudged liable to Celanese
Corporation unless, and only to the extent that, the Delaware
Court of Chancery or the court in which such judgment is
rendered determines that, despite the adjudication of liability
but in view of all the circumstances of the case, such director
or officer is fairly and reasonably entitled to indemnity for
such expenses and costs as court deems proper.
In addition, Section 102(b)(7) of the DGCL provides that a
corporation is restricted from relieving its directors from
personal liability to such corporation or its stockholders for
monetary damages for any breach of their fiduciary duty as
directors (i) for a breach of the duty of loyalty,
(ii) for acts or omissions not in good faith, or which
involve intentional misconduct or a knowing violation of law,
(iii) for willful or negligent violations of certain
provisions in the DGCL imposing certain requirements with
respect to stock repurchases, redemptions and dividends, or
(iv) for any transactions from which the director derived
an improper personal benefit.
II-2
Celanese Corporation currently maintains an insurance policy
which, within the limits and subject to the terms and conditions
thereof, covers certain expenses and liabilities that may be
incurred by directors and officers in connection with
proceedings that may be brought against them as a result of an
act or omission committed or suffered while acting as a director
or officer of Celanese Corporation.
Celanese
US Holdings LLC
Celanese US Holdings LLC is a Delaware limited liability company
managed and operated by its sole member.
Section 18-108
of the Delaware Limited Liability Company Act (DLLCA) provides
that, subject to such standards and restrictions, if any, as are
set forth in its limited liability company agreement, a Delaware
limited liability company may, and shall have the power to,
indemnify and hold harmless any member or manager or other
person from and against any and all claims and demands
whatsoever.
The limited liability company agreement of Celanese US Holdings
LLC provides that its member and any officer of Celanese US
Holdings LLC shall be entitled to indemnification for any loss,
damage or claim incurred by the member or officer by reason of
any act or omission performed or omitted by the member or
officer in good faith on behalf of Celanese US Holdings LLC and
in a manner reasonably believed to be within the scope of the
authority conferred on the member or officer by the limited
liability company agreement, except that the member or officer
is not entitled to indemnification for any loss, damage or claim
incurred by the member by reason of the member or officers
gross negligence or willful misconduct.
Co-Registrants
Certain officers and other employees of Celanese Corporation
serve at the request of Celanese Corporation as a director,
officer, manager, employee or agent of the co-registrants, and
thus may be entitled to indemnification under the provisions set
forth above. In addition to potential indemnification by
Celanese Corporation, the directors, officers, managers,
employees and agents of the co-registrants are also entitled to
indemnification and exculpation for certain monetary damages to
the extent provided in the applicable co-registrants
organizational documents or under the laws under which the
co-registrants are organized as described below. In addition,
directors and officers of the co-registrants are entitled to
indemnification pursuant to the Employee Indemnification Policy
described above.
Delaware
Corporations
The co-registrants that are Delaware corporations are subject to
the provisions of the DGCL described above with respect to
Celanese Corporation. The certificates of incorporation and
by-laws of these co-registrants provide, in effect, that, to the
fullest extent and under the circumstances permitted by the
DGCL, each co-registrant that is a Delaware corporation will
indemnify any person who was or is a party, or is threatened to
be made a party, to any threatened, pending or completed action,
suit or proceeding, whether or not by or in the right of such
co-registrant, and whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such
person is or was a director, officer or employee of such
co-registrant, or is or was serving at the request of such
co-registrant as a director, officer, employee or agent of
another corporation or enterprise.
Delaware
Limited Liability Companies
The co-registrants that are Delaware limited liability companies
are each managed and operated by a board of managers appointed
by the limited liability companys sole member. These
co-registrants are subject to
Section 18-108
of the DLLCA, which provides that, subject to such standards and
restrictions, if any, as are set forth in its limited liability
company agreement, a Delaware limited liability company may, and
shall have the power to, indemnify and hold harmless any member
or manager or other person from and against any and all claims
and demands whatsoever.
The limited liability company agreements of Celanese Americas
LLC, Celanese Fibers Operations LLC, and CNA Holdings LLC,
provide that each of these co-registrants shall, to the fullest
extent permitted by applicable law, indemnify and hold harmless
any person made or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a manager or
officer of these co-registrants or is or was serving at the
request of the these co-registrants as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise. The aforementioned co-registrants may also
indemnify, to the fullest extent permitted by applicable law,
any person made
II-3
or threatened to be made party to any proceeding by reason of
the fact that such person is or was an employee or agent of the
co-registrants, or is or was serving at their request as an
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
The limited liability company agreements of Celanese Acetate
LLC, KEP Americas Engineering Plastics, LLC, and Ticona LLC
provide that each of these co-registrants shall, to the fullest
extent permitted by applicable law, indemnify any person who was
or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that he, or a person for whom he is the legal representative, is
or was a manager, officer or employee of these co-registrants
or, while a manager, officer or employee of the aforementioned
co-registrants, is or was serving at the written request of
these co-registrants as a director, officer, manager, employee
or agent of another limited liability company or of a
corporation, partnership, joint venture, trust, non-profit
entity, or any other enterprise, including service with respect
to employee benefit plans, against all liability and loss
suffered and expenses actually and reasonably incurred by such
indemnified person. Notwithstanding the preceding sentence, the
aforementioned co-registrants are not required to provide
indemnification to a person in connection with a proceeding (or
part thereof) commenced by such person if such proceeding (or
part thereof) was not authorized by the sole member of such
co-registrant.
The limited liability company agreement of CNA Funding LLC
provides that it will indemnify and hold harmless the managers
and officers of the company, and the respective officers,
directors and employees of its members and managers from any
claim, loss, expense, liability, action or damage resulting from
any act or omission performed by or on behalf of the indemnified
person in their capacity as member, manager or officer. However,
the indemnified person will not be indemnified for any act or
omission that violates the CNA Funding LLC limited liability
company agreement or that constitutes fraud, gross negligence or
willful misconduct.
The limited liability company agreement of Celanese Global
Relocation LLC provides that it will indemnify and hold
harmless, to the fullest extent permitted by law, any person who
was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding whether
civil, criminal, administrative or investigative, by reason of
the fact that he, or a person for whom he is the legal
representative, is or was a manager, officer or employee of
Celanese Global Relocation LLC or, while a manager, officer or
employee of the company serving at the written request of the
company as a director, officer, manager, employee or agent of
another limited liability company or of a corporation,
partnership, joint venture, trust, enterprise or nonprofit
entity including service with respect to employee benefit plans,
against all liability and loss suffered and expenses reasonably
incurred by the indemnified person. Celanese Global Relocation
LLC will indemnify the aforementioned persons in connection with
a proceeding commenced by such person only if the commencement
of such proceeding (or part thereof) by the person was
authorized by its sole member.
Texas
Limited Partnership
Celanese Ltd. is a Texas limited partnership that is managed and
operated by the employees, officers and directors of its general
partner, Celanese International Corporation. Chapter 8 of
the Texas Business Organizations Code (TBOC) requires a limited
partnership to indemnify a general partner or former general
partner who incurs expenses in connection with a legal
proceeding relating to such current or former general
partners position with the partnership. Indemnification is
mandatory only if (i) the current or former general partner
is wholly successful in the underlying legal proceeding, and
(ii) such indemnification is not otherwise prohibited by a
written partnership agreement.
Additionally, Chapter 8 permits a limited partnership to
indemnify a general partner or former general partner who acted
in good faith and reasonably believed that (i) the conduct
was in the partnerships best interests (if performed in
the general partners official capacity), or (ii) the
conduct was not opposed to the partnerships best interests
(if performed outside of the general partners official
capacity). In the case of a criminal proceeding, indemnification
is permitted only if the general partner did not have a
reasonable cause to believe its conduct was unlawful.
Chapter 8 permits indemnification of a general partner
without the necessity of indemnification provisions in the
partnership agreement. In the absence of such provisions,
however, the partnership must make the determination to
indemnify a general partner according to the guidelines provided
in Section 8.103 of the TBOC.
II-4
In all instances, Chapter 8 prohibits a limited partnership
from indemnifying a general partner or former general partner in
relation to a proceeding in which the general partner is found
to be liable for (i) willful or intentional misconduct,
(ii) breach of the duty of loyalty or (iii) an act or
omission not in good faith constituting a breach of the general
partners duty to the partnership.
Chapter 8 provides that limited partners, employees and
others who are not also general partners may be indemnified by
provisions in the partnership agreement, by contract, by common
law or through other action by the partnerships governing
authority.
The Agreement of Limited Partnership of Celanese Ltd. instructs
that the partnership shall indemnify its general partner and all
persons acting on behalf of the general partner to the fullest
extent permitted by Article 11 of the former Texas Revised
Limited Partnership Act, which was replaced by the TBOC on
January 1, 2010.
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1
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.1*
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Form of Underwriting Agreement.
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4
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.1
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|
Second Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to
Celaneses Annual Report on
Form 10-K
filed with the SEC on February 11, 2011).
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4
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.2
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Third Amended and Restated By-laws, effective as of
October 23, 2008 (incorporated by reference to
Exhibit 3.1 to the Current Report on
Form 8-K
filed with the SEC on October 29, 2008).
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4
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.3
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Form of certificate of Series A common stock (incorporated
by reference to Exhibit 4.1 to Celaneses Registration
Statement on
Form S-1
(File
No. 333-120187)
filed with the SEC on January 13, 2005).
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4
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.4*
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Form of certificate of offered preferred stock.
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4
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.5*
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Form of certificate of designations for offered preferred stock.
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4
|
.6
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|
Form of Senior Debt Securities Indenture.
|
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4
|
.7
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Form of Subordinated Debt Securities Indenture.
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4
|
.8*
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Forms of Debt Securities.
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5
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.1
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Opinion of Gibson, Dunn & Crutcher LLP.
|
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12
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.1
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Statement of Computation of Ratio of Earnings to Fixed Charges.
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23
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.1
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Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1).
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23
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.2
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Consent of KPMG LLP, Independent Registered Public Accounting
Firm of Celanese Corporation.
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23
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.3
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Consent of Deloitte & Touche LLP, Independent Auditors
of CTE Petrochemicals Company.
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23
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.4
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Consent of Deloitte & Touche Bakr
Abulkhair & Co., Independent Auditors of National
Methanol Company.
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24
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.1
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|
Power of Attorney with respect to Celanese Corporation.
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24
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.2
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|
Powers of Attorney with respect to Celanese US Holdings LLC and
the co-registrants (included on the signature pages of this
registration statement).
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25
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.1
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Statement of Eligibility of Trustee on
Form T-1
for Senior Debt Securities.
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25
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.2
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Statement of Eligibility of Trustee on
Form T-1
for Subordinated Debt Securities.
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* To be filed by an amendment hereto or as an exhibit to a
report filed under the Exchange Act and incorporated herein by
reference.
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(a)
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The undersigned registrants hereby undertake:
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(1)
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To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
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II-5
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prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
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(iii)
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To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
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Provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the registrants pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
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(2)
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That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be this initial bona fide
offering thereof.
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(3)
|
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
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(4)
|
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
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(A)
|
Each prospectus filed by the registrants pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
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(B)
|
Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to that securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof;
provided,
however
, that no statement made in a registration statement
or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
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(5)
|
That, for the purpose of determining liability of the
registrants under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrants undertake that in a primary offering of securities
of the undersigned registrants pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrants will be sellers to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned
registrants relating to the offering required to be filed
pursuant to Rule 424;
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II-6
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(ii)
|
Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrants or used or referred
to by the undersigned registrants;
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(iii)
|
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrants or their securities provided by or on behalf of the
undersigned registrants; and
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(iv)
|
Any other communication that is an offer in the offering made by
the undersigned registrants to the purchaser.
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(b)
|
The undersigned registrants hereby undertake that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of Celanese Corporations annual report
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrants pursuant to
the foregoing provisions, or otherwise, the registrants have
been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrants of expenses incurred
or paid by a director, officer or controlling person of the
registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, each
appropriate registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
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II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Celanese Corporation certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas on April 29, 2011.
CELANESE CORPORATION
Name:
Steven
M. Sterin
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Title:
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Senior Vice President and Chief
Financial Officer
|
Pursuant to the requirements of Securities Act of 1933, this
registration statement has been signed by the following persons
on April 29, 2011 in the capacities indicated below.
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Signature
|
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Title
|
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*
David
N. Weidman
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|
Chairman and Chief Executive Officer
(Principal Executive Officer)
; Director
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/s/ Steven
M. Sterin
Steven
M. Sterin
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|
Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
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*
Christopher
W. Jensen
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|
Senior Vice President, Finance
(Principal Accounting Officer)
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*
James
E. Barlett
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|
Director
|
|
|
|
*
David
F. Hoffmeister
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Director
|
|
|
|
*
Martin
G. McGuinn
|
|
Director
|
|
|
|
*
Paul
H. ONeill
|
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Director
|
|
|
|
*
Mark
C. Rohr
|
|
Director
|
|
|
|
*
Daniel
S. Sanders
|
|
Director
|
|
|
|
*
Farah
M. Walters
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Director
|
|
|
|
*
John
K. Wulff
|
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Director
|
* The undersigned does hereby sign
this registration statement on behalf of the above-indicated
director and/or officer of Celanese Corporation pursuant to a
power of attorney executed by such director or officer. Copies
of the powers of attorney are being filed with the Securities
and Exchange Commission simultaneously herewith.
Name:
Steven
M. Sterin
Attorney-in-Fact
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELANESE US HOLDINGS LLC
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|
|
|
By:
|
/s/ Christopher W.
Jensen
|
Name:
Christopher
W. Jensen
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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|
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|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Christopher
W. Jensen
Christopher
W. Jensen
|
|
President
(Principal Executive Officer)
|
|
April 29, 2011
|
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|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President and Treasurer
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CNA HOLDINGS LLC
|
|
|
|
By:
|
/s/ Christopher W.
Jensen
|
Name:
Christopher
W. Jensen
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
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|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Christopher
W. Jensen
Christopher
W. Jensen
|
|
President
(Principal Executive Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President and Treasurer
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Manager
|
|
April 29, 2011
|
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELANESE AMERICAS LLC
|
|
|
|
By:
|
/s/ Christopher W.
Jensen
|
Name:
Christopher
W. Jensen
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Christopher
W. Jensen
Christopher
W. Jensen
|
|
President
(Principal Executive Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President and Treasurer
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Manager
|
|
April 29, 2011
|
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELANESE CHEMICALS, INC.
|
|
|
|
By:
|
/s/ Christopher W.
Jensen
|
Name:
Christopher
W. Jensen
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
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|
|
|
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Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
President
(Principal Executive
Officer);
Director
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Christopher
W. Jensen
Christopher
W. Jensen
|
|
Treasurer
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELTRAN, INC.
Name:
John
W. Howard
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
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|
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Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President
(Principal Executive Officer and
Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Director
|
|
April 29, 2011
|
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELANESE INTERNATIONAL CORPORATION
CELANESE LTD.
|
|
|
|
By:
|
CELANESE INTERNATIONAL CORPORATION, its general partner
|
|
|
|
|
By:
|
/s/ Douglas
M. Madden
|
Name:
Douglas
M. Madden
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Douglas
M. Madden
Douglas
M. Madden
|
|
President
(Principal Executive Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Christopher
W. Jensen
Christopher
W. Jensen
|
|
Treasurer
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Director
|
|
April 29, 2011
|
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELANESE ACETATE LLC
Name:
John
W. Howard
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President
(Principal Executive Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Christopher
W. Jensen
Christopher
W. Jensen
|
|
Treasurer
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Mats
Bjoerkman
Mats
Bjoerkman
|
|
Manager
|
|
April 29, 2011
|
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELANESE FIBERS OPERATIONS LLC
Name:
John
W. Howard
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Douglas
M. Madden
Douglas
M. Madden
|
|
President and Manager
(Principal Executive Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Vice President
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CNA FUNDING LLC
Name:
John
W. Howard
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President
(Principal Executive Officer and
Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Manager
|
|
April 29, 2011
|
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
TICONA LLC
Name:
John
W. Howard
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ John
R. Wardzel
John
R. Wardzel
|
|
Vice President
(Principal Executive
Officer);
Manager
|
|
April 29, 2011
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
KEP AMERICAS ENGINEERING PLASTICS, LLC
Name:
John
W. Howard
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Vice President
(Principal Executive Officer)
|
|
April 29, 2011
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President
(Principal Financial and
Accounting Officer);
Manager
|
|
April 29, 2011
|
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
TICONA FORTRON INC.
TICONA POLYMERS, INC.
Name:
John
W. Howard
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ John
R. Wardzel
John
R. Wardzel
|
|
Vice President
(Principal Executive Officer);
Director
|
|
April 29, 2011
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
co-registrant named below certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, as of April 29, 2011.
CELANESE GLOBAL RELOCATION LLC
Name:
Steven
M. Sterin
|
|
|
|
Title:
|
Vice President and Controller
|
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below on this registration statement on
Form S-3
constitutes and appoints Christopher W. Jensen and John W.
Howard, and each of them, as his or her true and lawful
attorneys-in-fact and agents, each of whom may act without
joinder of the other, and each with full power of substitution
and resubstitution, for such person and in his or her name,
place and stead, in any and all capacities, to sign, or cause to
be signed electronically, any and all post-effective amendments
and supplements to this registration statement, and to file the
same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission (SEC), and to appear before the SEC in connection
with any matter relating to the registration statement, hereby
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Steven
M. Sterin
Steven
M. Sterin
|
|
Vice President and Controller
(Principal Executive Officer);
Manager
|
|
April 29, 2011
|
|
|
|
|
|
/s/ John
W. Howard
John
W. Howard
|
|
Vice President, Tax
(Principal Financial and
Accounting Officer)
|
|
April 29, 2011
|
II-21
EXHIBIT INDEX
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
1.1*
|
|
Form of Underwriting Agreement.
|
4.1
|
|
Second Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to
Celaneses Annual Report on
Form 10-K
filed with the SEC on February 11, 2011).
|
4.2
|
|
Third Amended and Restated By-laws, effective as of
October 23, 2008 (incorporated by reference to
Exhibit 3.1 to the Current Report on
Form 8-K
filed with the SEC on October 29, 2008).
|
4.3
|
|
Form of certificate of Series A common stock (incorporated
by reference to Exhibit 4.1 to Celaneses Registration
Statement on
Form S-1
(File
No. 333-120187)
filed with the SEC on January 13, 2005).
|
4.4*
|
|
Form of certificate of offered preferred stock.
|
4.5*
|
|
Form of certificate of designations for offered preferred stock.
|
4.6
|
|
Form of Senior Debt Securities Indenture.
|
4.7
|
|
Form of Subordinated Debt Securities Indenture.
|
4.8*
|
|
Forms of Debt Securities.
|
5.1
|
|
Opinion of Gibson, Dunn & Crutcher LLP.
|
12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges.
|
23.1
|
|
Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1).
|
23.2
|
|
Consent of KPMG LLP, Independent Registered Public Accounting
Firm of Celanese Corporation.
|
23.3
|
|
Consent of Deloitte & Touche LLP, Independent Auditors
of CTE Petrochemicals Company.
|
23.4
|
|
Consent of Deloitte & Touche Bakr
Abulkhair & Co., Independent Auditors of National
Methanol Company.
|
24.1
|
|
Power of Attorney with respect to Celanese Corporation.
|
24.2
|
|
Powers of Attorney with respect to Celanese US Holdings LLC and
the co-registrants (included on the signature pages of this
registration statement).
|
25.1
|
|
Statement of Eligibility of Trustee on
Form T-1
for Senior Debt Securities.
|
25.2
|
|
Statement of Eligibility of Trustee on
Form T-1
for Subordinated Debt Securities.
|
* To be filed by an amendment
hereto or as an exhibit to a report filed under the Exchange Act
and
incorporated herein by reference.
EXHIBIT 4.6
Celanese US Holdings LLC
as Issuer
AND
Celanese Corporation
as Parent Guarantor
INDENTURE
Dated as of [__________], 2011
Wells Fargo Bank, National Association
as Trustee
Senior Debt Securities
TABLE OF CONTENTS
|
|
|
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|
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|
|
Page
|
|
|
|
|
|
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
1
|
Section 1.1.
|
|
Definitions
|
|
1
|
Section 1.2.
|
|
Other Definitions
|
|
5
|
Section 1.3.
|
|
Rules of Construction
|
|
5
|
ARTICLE II. THE SECURITIES
|
|
6
|
Section 2.1.
|
|
Issuable in Series
|
|
6
|
Section 2.2.
|
|
Establishment of Terms of Series of Securities
|
|
6
|
Section 2.3.
|
|
Execution and Authentication
|
|
9
|
Section 2.4.
|
|
Registrar, Paying Agent and Transfer Agent
|
|
10
|
Section 2.5.
|
|
Paying Agent to Hold Money in Trust
|
|
11
|
Section 2.6.
|
|
Securityholder Lists
|
|
11
|
Section 2.7.
|
|
Transfer and Exchange
|
|
11
|
Section 2.8.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
12
|
Section 2.9.
|
|
Outstanding Securities
|
|
12
|
Section 2.10.
|
|
Treasury Securities
|
|
13
|
Section 2.11.
|
|
Temporary Securities
|
|
13
|
Section 2.12.
|
|
Cancellation
|
|
13
|
Section 2.13.
|
|
Global Securities
|
|
14
|
Section 2.14.
|
|
CUSIP Numbers
|
|
15
|
Section 2.15.
|
|
Form of Parent Guarantee
|
|
15
|
ARTICLE III. REDEMPTION
|
|
16
|
Section 3.1.
|
|
Notice to Trustee; No Liability for Calculations
|
|
16
|
Section 3.2.
|
|
Selection of Securities to be Redeemed
|
|
16
|
Section 3.3.
|
|
Notice of Redemption
|
|
17
|
Section 3.4.
|
|
Effect of Notice of Redemption
|
|
18
|
Section 3.5.
|
|
Deposit of Redemption Price
|
|
18
|
Section 3.6.
|
|
Securities Redeemed in Part
|
|
18
|
Section 3.7.
|
|
Sinking Fund
|
|
19
|
Section 3.8.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
19
|
Section 3.9.
|
|
Redemption of Securities for Sinking Fund
|
|
19
|
ARTICLE IV. COVENANTS
|
|
20
|
Section 4.1.
|
|
Payment of Principal, Premium and Interest
|
|
20
|
Section 4.2.
|
|
Compliance Certificate
|
|
20
|
Section 4.3.
|
|
Stay, Extension and Usury Laws
|
|
20
|
Section 4.4.
|
|
Corporate Existence
|
|
21
|
Section 4.5.
|
|
Reports
|
|
21
|
ARTICLE V. SUCCESSORS
|
|
21
|
Section 5.1.
|
|
Consolidation, Merger and Sale of Assets
|
|
21
|
ARTICLE VI. DEFAULTS AND REMEDIES
|
|
22
|
Section 6.1.
|
|
Events of Default
|
|
22
|
Section 6.2.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
23
|
Section 6.3.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
24
|
Section 6.4.
|
|
Trustee May File Proofs of Claim
|
|
24
|
i
|
|
|
|
|
|
|
|
|
|
Section 6.5.
|
|
Trustee May Enforce Claims Without Possession of Securities
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25
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Section 6.6.
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Application of Money Collected
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25
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Section 6.7.
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Limitation on Suits
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26
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Section 6.8.
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Unconditional Right of Holders to Receive Principal and Interest
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26
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Section 6.9.
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Restoration of Rights and Remedies
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26
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Section 6.10.
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Rights and Remedies Cumulative
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27
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Section 6.11.
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Delay or Omission Not Waiver
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27
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Section 6.12.
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Control by Holders
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27
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Section 6.13.
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Waiver of Past Defaults
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27
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Section 6.14.
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Undertaking for Costs
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28
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ARTICLE VII. TRUSTEE
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28
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Section 7.1.
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Duties of Trustee
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28
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Section 7.2.
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Rights of Trustee
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29
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Section 7.3.
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May Hold Securities
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31
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Section 7.4.
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Trustees Disclaimer
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31
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Section 7.5.
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Notice of Defaults
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31
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Section 7.6.
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Compensation and Indemnity
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31
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Section 7.7.
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Replacement of Trustee
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32
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Section 7.8.
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Successor Trustee by Merger, etc.
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34
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Section 7.9.
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Eligibility; Disqualification
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34
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Section 7.10.
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Preferential Collection of Claims Against Issuer
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34
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ARTICLE VIII. DISCHARGE OF INDENTURE
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35
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Section 8.1.
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Termination of Issuers Obligations
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35
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Section 8.2.
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Application of Trust Money
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38
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Section 8.3.
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Repayment to Issuer or Parent Guarantor
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38
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Section 8.4.
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Reinstatement
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39
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ARTICLE IX. AMENDMENTS AND WAIVERS
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39
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Section 9.1.
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Without Consent of Holders
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39
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Section 9.2.
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With Consent of Holders
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40
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Section 9.3.
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Limitations
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41
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Section 9.4.
|
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Form of Amendments
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41
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Section 9.5.
|
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Revocation and Effect of Consents
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42
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Section 9.6.
|
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Notation on or Exchange of Securities
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42
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Section 9.7.
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Trustee Protected
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42
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ARTICLE X. MISCELLANEOUS
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42
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Section 10.1.
|
|
Notices
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42
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Section 10.2.
|
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Communication by Holders with Other Holders
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44
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Section 10.3.
|
|
Certificate and Opinion as to Conditions Precedent
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44
|
Section 10.4.
|
|
Statements Required in Certificate or Opinion
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44
|
Section 10.5.
|
|
Rules by Trustee and Agents
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45
|
Section 10.6.
|
|
Legal Holidays
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45
|
Section 10.7.
|
|
No Personal Liability of Directors, Officers, Employees and Certain Others
|
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45
|
Section 10.8.
|
|
Counterparts
|
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45
|
Section 10.9.
|
|
Governing Laws
|
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46
|
Section 10.10.
|
|
No Adverse Interpretation of Other Agreements
|
|
46
|
ii
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|
|
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Section 10.11.
|
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Successors
|
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46
|
Section 10.12.
|
|
Severability
|
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46
|
Section 10.13.
|
|
Table of Contents, Headings, Etc.
|
|
46
|
Section 10.14.
|
|
Judgment Currency
|
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46
|
Section 10.15.
|
|
English Language
|
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47
|
Section 10.16.
|
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Submission to Jurisdiction; Appointment of Agent
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47
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Section 10.17.
|
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Waiver of Immunity
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48
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Section 10.18.
|
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Waiver of Jury Trial
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48
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ARTICLE XI. GUARANTEES
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|
48
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Section 11.01
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Parent Guarantee
|
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48
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Section 11.02
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Execution and Delivery of Parent Guarantee
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49
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Section 11.03
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Release of Parent Guarantee
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50
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iii
Indenture dated as of [__________] between Celanese US Holdings LLC, a Delaware limited
liability company (the
Issuer
), Celanese Corporation, a Delaware corporation (the
Parent
Guarantor
) and Wells Fargo Bank, National Association, as trustee (the
Trustee
).
Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders (as defined below) of the Securities (as defined below) issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.
Definitions.
Affiliate
of any specified Person means any other Person directly or indirectly controlling
or controlled by or under common control with such specified Person. For the purposes of this
definition, control (including, with correlative meanings, the terms controlling, controlled
by and under common control with), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities or by agreement or
otherwise.
Agent
means any Registrar, Paying Agent or Transfer Agent or any other agent appointed
pursuant to this Indenture.
Board of Directors
means the Board of Directors of the Issuer, or any duly authorized
committee thereof.
Board Resolution
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Issuer to have been adopted by the Board of Directors or pursuant to authorization
by the Board of Directors and to be in full force and effect on the date of the certification and
delivered to the Trustee.
Business Day
means, unless otherwise provided by Board Resolution, Officers Certificate or
supplemental indenture for a particular Series, any day except a Saturday, Sunday or a Legal
Holiday in The City of New York on which banking institutions are authorized or required by law,
regulation or executive order to close.
Capital Stock
means (1) in the case of a corporation, corporate stock; (2) in the case of an
association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited
liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing Person, but excluding from
all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
Certificated Securities
means definitive Securities in registered non-global certificated
form.
Company Order
or
Company Request
means a written order signed in the name of the Issuer by
one of the Officers of the Issuer or the Parent Guarantor, as the case may be.
Corporate Trust Office
means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which, as of the date hereof is the
address set forth in Section 10.1.
Default
means any event which is, or after notice or passage of time or both would be, an
Event of Default.
Depositary
means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated as Depositary for
such Series by the Issuer which Depositary shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such Person,
Depositary
as used with respect to
the Securities of any Series shall mean the Depositary with respect to the Securities of such
Series.
Discount Security
means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
Dollars
or
$
means the currency of The United States of America.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
GAAP
means accounting principles generally accepted in the United States of America set
forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as have been approved
by a significant segment of the accounting profession, which are in effect from time to time.
Global Security
or
Global Securities
means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depositary for such Series or its nominee, and registered in the name of such
Depositary or nominee.
Government Obligations
means securities which are (i) direct obligations of The United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of The United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by The United States of America, and which in the case of (i) and (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such Government
2
Obligation or a specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided
that (except
as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the custodian with respect to
the Government Obligation evidenced by such depository receipt.
Holder
or
Securityholder
means a Person in whose name a Security is registered in the
register maintained by the Registrar.
Indenture
means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Securities established as contemplated
hereunder.
Issue Date
means, with respect to any Security, the date of original issuance of such
Security.
Maturity
, when used with respect to any Security, means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
Officer
means the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
Chief Accounting Officer, President, any Vice-President, the Treasurer, a Director, the Chairman,
the Secretary, any Assistant Treasurer or any Assistant Secretary of the Issuer or the Parent
Guarantor, as the case may be.
Officers Certificate
means a certificate signed by an Officer of the Issuer or the Parent
Guarantor, as the case may be.
Opinion of Counsel
means a written opinion of legal counsel who is acceptable to the
Trustee. The counsel may be a direct or indirect employee of or counsel to the Issuer or the
Parent Guarantor, as the case may be.
Parent Guarantee
means the unconditional and unsubordinated guarantee by the Parent
Guarantor of the due and punctual payment of principal of and interest on a series of Securities
when and as the same shall become due and payable, whether at the stated maturity, by acceleration,
call for redemption or otherwise in accordance with the terms of the Securities and this Indenture.
Parent Guarantor
means Celanese Corporation, a Delaware corporation.
Periodic Offering
means an offering of Securities of a Series from time to time, during
which any or all of the specific terms of the Securities, including the rate or rates of interest,
if any, thereon, the maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the issuance of such
Securities in accordance with the terms of the relevant supplemental indenture.
Person
means any individual, corporation, partnership, limited liability company,
association, joint venture, trust, joint stock company or any other entity or
3
organization, including a government or political subdivision or an agency or instrumentality
thereof.
principal
of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.
Responsible Officer
means any officer of the Trustee in its Corporate Trust Office
responsible for the administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with a particular subject.
Restricted Security
, with respect to any Series of Securities, means a Security of such
Series, unless or until it has been (i) effectively registered under the Securities Act and
disposed of in accordance with a registration statement with respect to such Series or (ii)
distributed to the public pursuant to Rule 144 under the Securities Act or any similar provision
then in force.
SEC
means the Securities and Exchange Commission.
Securities
means the debentures, notes or other debt instruments of the Issuer of any Series
authenticated and delivered under this Indenture.
Securities Act
means the Securities Act of 1933, as amended.
Series
or
Series of Securities
means each series of Securities of the Issuer created
pursuant to Sections 2.1 and 2.2 hereof.
Stated Maturity
when used with respect to any Security, means the date specified in such
Security as the fixed date on which the principal of such Security or interest is due and payable.
Subsidiary
means, with respect to any specified Person, (a) any corporation, association or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency and after giving effect to any voting
agreement or stockholders agreement that effectively transfers voting power) to vote in the
election of directors, managers or trustees of the corporation, association or other business
entity which is at the time owned or controlled, directly or indirectly, by that Person or one or more of
the other subsidiaries of that Person (or a combination thereof); and (b) any partnership or
limited liability company of which (x) more than 50% of the capital accounts, distribution rights,
total equity and voting interests or general and limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person or a combination thereof, whether in the form of membership, general,
special or limited partnership interests or otherwise, and (y) such Person or any subsidiary of
such Person is a controlling general partner or otherwise controls such entity.
Trustee
means the Person named as the
Trustee
in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter
Trustee
shall mean or include each Person who is
4
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 shall mean the Trustee with respect to Securities
of that Series.
Unrestricted Securities
, with respect to any Series of Securities, means a Security (i)
effectively registered under the Securities Act and disposed of in accordance with a registration
statement with respect to such Series or (ii) distributed to the public pursuant to Rule 144 under
the Securities Act or any similar provision then in force.
Section 1.2.
Other Definitions.
|
|
|
|
|
TERM
|
|
DEFINED IN
|
|
|
SECTION
|
|
|
|
|
|
Acceleration Notice
|
|
|
6.2
|
|
Bankruptcy Law
|
|
|
6.1
|
|
covenant defeasance
|
|
|
8.1(b)
|
Custodian
|
|
|
6.1
|
|
Event of Default
|
|
|
6.1
|
|
Issuer
|
|
|
Preamble
|
Judgment Currency
|
|
|
10.14
|
|
legal defeasance
|
|
|
8.1(c)
|
Legal Holiday
|
|
|
10.6
|
|
New York Banking Day
|
|
|
10.14
|
|
Paying Agent
|
|
|
2.4
|
|
Process Agent
|
|
|
10.16
|
|
Registrar
|
|
|
2.4
|
|
Related Proceeding
|
|
|
10.16
|
|
Required Currency
|
|
|
10.14
|
|
Successor Company
|
|
|
5.01
|
|
TIA
|
|
|
7.10
|
|
Transfer Agent
|
|
|
2.4
|
|
Section 1.3.
Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c)
or
is not exclusive and
including
means including without limitation;
(d) words in the singular include the plural, and in the plural include the singular;
and
5
(e) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1.
Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities
of a Series shall be identical except as may be set forth in, or pursuant to a Board Resolution,
Officers Certificate or supplemental indenture establishing the terms of such Series of
Securities.
Section 2.2.
Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such
Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through
2.2.28) by or pursuant to a Board Resolution, Officers Certificate or supplemental indenture:
2.2.1. the title of the Series of Securities (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);
2.2.2. any limit upon the aggregate principal amount of the Securities of the Series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.3. the date or dates on which the principal and premium, if any, of the Securities of the
Series is payable;
2.2.4. the rate or rates, which may be fixed or variable, at which the Securities of the
Series shall bear interest or the manner of calculation of such rate or rates, if any, including
any procedures to vary or reset such rate or rates, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day months;
2.2.5. the place or places where the principal of and interest, if any, on the Securities of
the Series shall be payable, where the Securities of such Series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Issuer with
respect to the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means if other than as set forth in this Indenture;
2.2.6. the date or dates from which interest on the Securities of the Series shall accrue, the
dates on which such interest will be payable or the manner of determination of such dates, and the
record date for the determination of Holders to whom interest is payable on any such dates;
6
2.2.7. any trustees, authenticating agents or paying agents with respect to the Securities of
the Series, if different from those set forth in this Indenture;
2.2.8. the right, if any, to extend the interest payment periods or defer the payment of
interest and the duration of such extension or deferral;
2.2.9. if applicable, the period or periods within which, the price or prices at 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 Issuer if other than as set forth in this Indenture;
2.2.10. the obligation, if any, of the Issuer to redeem, repurchase or repay, if other than as
set forth herein, the Securities of the Series pursuant to any sinking fund or analogous
provisions, including payments made in cash in anticipation of future sinking fund obligations, or
at the option of a Holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the Series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
2.2.11. the forms of the Securities of the Series including the form of the Trustees
certificate of authentication for such Series;
2.2.12. if other than denominations of $1,000 or integral multiples of $1,000 in excess
thereof, the denominations in which the Securities of the Series shall be issuable;
2.2.13. the currency or currencies in which payment of the principal of, premium, if any, and
interest on, the Securities of the Series shall be payable;
2.2.14. if the principal amount payable at the Stated Maturity of Securities of the Series
will not be determinable as of any one or more dates prior to such Stated Maturity, the amount
which will be deemed to be such principal amount as of any such date for any purpose, including the
portion of the principal amount thereof that will be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2 or upon any maturity other than the
Stated Maturity or that will 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;
2.2.15. the terms of any repurchase or remarketing rights;
2.2.16. if the Securities of the Series shall be issued in whole or in part in the form of a
Global Security or Securities, the type of Global Security to be issued; the terms and conditions,
if different from those contained in this Indenture, upon which such Global Security or Securities
may be exchanged in whole or in part for other individual Securities in definitive registered form;
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 2.14.2;
2.2.17. whether the Securities of the Series will be convertible into or exchangeable for
other Securities, common shares or other securities of any kind of the Issuer or another obligor,
and, if so, the terms and conditions upon which such Securities will be so convertible or
exchangeable, including the initial conversion or exchange price or rate or the
7
method of calculation, how and when the conversion price or exchange ratio may be adjusted,
whether conversion or exchange is mandatory, at the option of the holder or at the Issuers option,
the conversion or exchange period, and any other provision in addition to or in lieu of those
described herein;
2.2.18. any additional restrictive covenants or Events of Default that will apply to the
Securities of the Series, or any changes to the restrictive covenants set forth in Article IV or
the Events of Default set forth in Section 6.01 that will apply to the Securities of the Series,
which may consist of establishing different terms or provisions from those set forth in Article IV
or Section 6.01 or eliminating any such restrictive covenant or Event of Default with respect to
the Securities of the Series;
2.2.19. any provisions granting special rights to Holders when a specified event occurs;
2.2.20. if the amount of principal of or any premium or interest on Securities of any Series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts will be determined;
2.2.21. any special tax implications of the Securities, including provisions for original
issue discount securities, if offered;
2.2.22. whether and upon what terms Securities of the Series may be defeased if different from
the provisions set forth in this Indenture;
2.2.23. with regard to the Securities of any Series that do not bear interest, the dates for
certain required reports to the Trustee;
2.2.24. whether the Securities of any Series will be issued as Unrestricted Securities or
Restricted Securities, and, if issued as Restricted Securities, the rule or regulation promulgated
under the Securities Act in reliance on which they will be sold;
2.2.25. any guarantees, supplemental to the Parent Guarantee, on the Securities of the Series,
and the terms and conditions upon which any guarantees, including the Parent Guarantee, may be
released or terminated;
2.2.26. the provisions, if any, relating to any security provided for the Securities of the
Series;
2.2.27. any Depositaries, interest rate calculation agents, exchange rate calculation agents
or other agents with respect to Securities of such Series if other than those appointed herein; and
2.2.28. any and all additional, eliminated or changed terms that shall apply to the Securities
of the Series, including any terms that may be required by or advisable under United States laws or
regulations, including the Securities Act and the rules and regulations promulgated thereunder, or
advisable in connection with the marketing of Securities of that Series.
8
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, Officers Certificate or supplemental indenture referred to above.
Section 2.3.
Execution and Authentication.
An Officer of the Issuer shall sign the Securities for the Issuer, and an Officer of the
Parent Guarantor shall sign the Parent Guarantees for the Parent Guarantor, in each case by manual
or facsimile signature.
If an Officer whose signature is on a Security or Parent Guarantee no longer holds that office
at the time the Security is authenticated, the Security or Parent Guarantee, as the case may be,
shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, Officers Certificate or
supplemental indenture, upon receipt by the Trustee of a Company Order. Each Security shall be
dated the date of its authentication unless otherwise provided by the relevant Board Resolution,
Officers Certificate or supplemental indenture.
Notwithstanding the provisions of Section 2.2 and the preceding paragraph, in the case of
Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with a Company Order or such other procedures acceptable
to the Trustee as may be specified by or pursuant to a supplemental indenture or the written order
of the Issuer delivered to the Trustee prior to the time of the first authentication of Securities
of such Series.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, Officers Certificate or supplemental indenture delivered pursuant to Section 2.2.
Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
Officers Certificate or supplemental indenture establishing the form of the Securities of that
Series or of Securities within that Series and the terms of the Securities of that Series or of
Securities within that Series, (b) an Officers Certificate complying with Section 10.4, and (c) an
Opinion of Counsel complying with Section 10.4. With respect to Securities of a Series subject to
a Periodic Offering, the Trustee conclusively may rely, as to the authorization by the Issuer of
any of such Securities, the forms and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the written order of the Issuer, Opinion of Counsel, Officers
Certificate and other documents delivered pursuant to this Section 2.3 at or prior to the time of
the first authentication of Securities of such Series unless and until such written order, Opinion
9
of Counsel, Officers Certificate or other documents have been superseded or revoked, and
written notice thereof is provided to Trustee, or expire by their terms.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a committee of Responsible Officers shall determine that such action would expose the
Trustee to personal liability.
The Trustee may appoint an authenticating agent to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.
Section 2.4.
Registrar, Paying Agent and Transfer Agent.
The Issuer will maintain one or more paying agents (each, a
Paying Agent
) for the Securities
in the Borough of Manhattan, City of New York. The initial Paying Agent will be the Trustee and
thereafter
Paying Agent
shall mean or include each Person who is then a Paying Agent hereunder,
and if at any time there is more than one such Person,
Paying Agent
as used with respect to the
Securities of any Series shall mean the Paying Agent with respect to Securities of that Series.
The Issuer, upon written notice to the Trustee accompanied by an Officers Certificate, may appoint
one or more paying agents, other than the Trustee, for all or any Series of Securities. If the
Issuer fails to appoint or maintain another entity as paying agent, the Trustee shall act as such.
The Issuer, the Parent Guarantor or any of their Subsidiaries, upon notice to the Trustee, may act
as paying agent.
The Issuer will maintain one or more registrars (each, a
Registrar
) for the Securities in
the Borough of Manhattan, City of New York. The initial Registrar will be the Trustee and
thereafter
Registrar
shall mean or include each Person who is then a Registrar hereunder, and if
at any time there is more than one such Person,
Registrar
as used with respect to the Securities
of any Series shall mean the Registrar with respect to Securities of that Series. The Issuer, upon
written notice to the Trustee accompanied by an Officers Certificate, may appoint one or more
registrars, other than the Trustee, for all or any Series of Securities. If the Issuer fails to
appoint or maintain another entity as registrar, the Trustee shall act as such. The Issuer, the
Parent Guarantor or any of their Subsidiaries, upon notice to the Trustee, may act as registrar.
The Issuer will also maintain a transfer agent (each, a
Transfer Agent
) for the Securities
in the Borough of Manhattan, City of New York. The initial Transfer Agent will be the Trustee and
thereafter
Transfer Agent
shall mean or include each Person who is then a Transfer Agent
hereunder, and if at any time there is more than one such Person,
Transfer Agent
as used with
respect to the Securities of any Series shall mean the Transfer Agent with respect to Securities of
that Series. The Issuer, upon written notice to the Trustee accompanied by an Officers
Certificate, may appoint one or more transfer agents, other than the Trustee, for all or any Series
of Securities. If the Issuer fails to appoint or maintain another entity as transfer
10
agent, the Trustee shall act as such. The Issuer, the Parent Guarantor, or any Subsidiary of
either, upon notice to the Trustee, may act as transfer agent.
The Issuer may change any Paying Agent, Registrar or Transfer Agent for its Securities without
prior notice to the Holders.
Section 2.5.
Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent appointed by it other than the Issuer, the Parent
Guarantor, a Subsidiary of either the Issuer or the Parent Guarantor, or the Trustee to agree in
writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series
of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of
or interest on the Series of Securities, and will notify the Trustee of any default by the Issuer
in making any such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Issuer, the Parent Guarantor or a Subsidiary of either) shall have no
further liability for the money. If the Issuer, the Parent Guarantor or a Subsidiary of either
acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6.
Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders of each Series of Securities.
If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least ten days
before each interest payment date and at such other times as the Trustee may request in writing a
list, in such form and as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders of each Series of Securities.
Section 2.7.
Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if the requirements for such
transactions set forth in this Indenture are met. To permit registrations of transfers and
exchanges, the Trustee shall authenticate Securities at the Registrars request upon the Trustees
receipt of a Company Order from the Issuer. No service charge shall be made for any registration
of transfer or exchange (except as otherwise expressly permitted herein), but the Issuer may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Issuer nor the Registrar shall be required (a) to issue, register the transfer of,
or exchange Securities of any Series for the period beginning at the opening of business fifteen
days immediately preceding the delivery of a notice of redemption of Securities of that Series
selected for redemption and ending at the close of business on the day of such delivery, or (b) to
register the transfer of or exchange Securities of any Series selected, called or
11
being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part.
Section 2.8.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer shall execute a new
Security of the same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, upon which the Parent Guarantor shall execute the Parent Guarantee,
and the Trustee shall authenticate and deliver such new Security in exchange for the Security
surrendered.
If there shall be delivered to the Issuer and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Issuer or the Trustee that such Security has been acquired by a protected
purchaser, the Issuer shall execute, the Parent Guarantor shall execute the Parent Guarantee
thereon and upon receipt of a Company Order, the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series
and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section 2.8, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any Series issued pursuant to this Section 2.8 in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Issuer whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 2.9.
Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest on a Security, if applicable, effected by the Trustee in accordance with the provisions
hereof and those described in this Section 2.9 as not outstanding.
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If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.
If the Paying Agent (other than the Issuer, a Subsidiary of the Issuer or an Affiliate of the
Issuer) holds on the Maturity of Securities of a Series money sufficient to pay such Securities
payable on that date, then on and after that date such Securities of the Series cease to be
outstanding and interest on them ceases to accrue.
The Issuer may purchase or otherwise acquire the Securities, whether by open market purchases,
negotiated transactions or otherwise. A Security does not cease to be outstanding because the
Issuer or an Affiliate of the Issuer holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10.
Treasury Securities.
In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver,
Securities of a Series owned by the Issuer, the Parent Guarantor or any Affiliate of the Issuer or
the Parent Guarantor shall be disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee
knows are so owned shall be so disregarded.
Section 2.11.
Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Issuer
considers appropriate for temporary Securities. Without unreasonable delay, the Issuer shall
prepare and the Trustee upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged, temporary
securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12.
Cancellation.
The Issuer at any time may deliver Securities to the Trustee for cancellation. The Agents
shall forward to the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation and shall destroy such canceled Securities (subject to the
record retention requirement of the Exchange Act) and deliver a certificate of such
13
destruction to the Issuer upon written request. The Issuer may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13.
Global Securities.
2.13.1.
Transfer and Exchange
. Notwithstanding any provisions to the contrary
contained in Section 2.7 of this Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of this Indenture for Securities registered in the names of
Holders other than the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Issuer fails to appoint a successor Depositary registered as
a clearing agency under the Exchange Act within 90 days of such event or (ii) the Issuer executes
and delivers to the Trustee an Officers Certificate to the effect that such Global Security shall
be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary shall direct in
writing in an aggregate principal amount equal to the principal amount of the Global Security with
like tenor and terms.
Except as provided in this Section 2.14.1, a Global Security may not be transferred except as
a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by
a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or
inquire as to compliance with any tax or securities laws with respect to any restrictions on
transfer imposed under this Indenture or under applicable law (including any transfers between or
among Depositary participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements hereof.
2.13.2.
Legend
. Any Global Security issued hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
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NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
2.13.3.
Acts of Holders
. The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under this
Indenture.
2.13.4.
Payments
. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof, which in the case of a Depositary
therefore will be made in accordance with its applicable procedures.
2.13.5.
Holders
. The Issuer, the Trustee and each Agent shall treat the Person in
whose name any Security is registered in the register maintained by the Registrar as the Holder for
all purposes including for purposes of obtaining any consents, declarations, waivers or directions
permitted or required to be given by the Holders pursuant to this Indenture.
2.13.6.
No Obligation of the Trustee
. Neither the Trustee nor any Agent shall have any
responsibility or obligation to any beneficial owner of an interest in a Global Security, a member
of, or a participant in, the Depositary or other Person with respect to the accuracy of the records
of the Depositary or its nominee or of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice (including any notice of
redemption) or the payment of any amount or delivery of any Securities (or other security or
property) under or with respect to such Securities. All notices and communications to be given to
the Holders and all payments to be made to Holders with respect to the Securities shall be given or
made only to or upon the order of the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Security). The rights of beneficial owners in any Global Security
shall be exercised only through the Depositary subject to the applicable rules and procedures of
the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members, participants and any
beneficial owners.
Section 2.14.
CUSIP Numbers.
The Issuer in issuing the Securities may use CUSIP, ISIN and or Common Code numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP, ISIN and or Common Code
numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other elements of identification printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers.
Section 2.15.
Form of Parent Guarantee.
The form of Parent Guarantee shall be set forth on the applicable Series of Securities
substantially as follows:
15
GUARANTEE
For value received, the Parent Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to the holder of this Security the payment of principal of, premium, if any, and
interest on, the Security upon which this Parent Guarantee is set forth in the amounts and at the
time when due and payable whether by declaration thereof, or otherwise, and interest on the overdue
principal and interest, if any, of such Security, if lawful, to the holder of such Security and the
Trustee on behalf of the Holders, all in accordance with and subject to the terms and limitations
of such Security and Article XI of the Indenture. This Parent Guarantee will not become effective
until the Trustee or authenticating agent duly executes the certificate of authentication on this
Security. This Parent Guarantee shall be governed by and construed in accordance with the laws of
the State of New York, without regard to conflict of law principles thereof.
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Dated:
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CELANESE CORPORATION
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By:
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Name:
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Title:
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ARTICLE III.
REDEMPTION
Section 3.1.
Notice to Trustee; No Liability for Calculations.
The Issuer may, with respect to any Series of Securities, reserve the right to redeem and pay
such Series of Securities or may covenant to redeem and pay such Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in
Sections 3.9 and 3.10 hereof or, as applicable, in the Board Resolution, Officers Certificate or
supplemental indenture relating to such Series. If a Series of Securities is redeemable and the
Issuer wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in
writing of the redemption date and the principal amount of Series of Securities to be redeemed at
least 40 days before a redemption date (or such shorter notice as may be acceptable to the
Trustee). The Trustee shall have no liability with respect to or obligation to calculate the
redemption price of any Securities to be redeemed pursuant to this Indenture.
Section 3.2.
Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board Resolution, Officers
Certificate or a supplemental indenture, if less than all of the Securities of a Series are to be
redeemed at any time, the Trustee will select the Securities of a Series to be redeemed on a
pro
rata
basis (or, in the case of Securities issued in global form based on a method that most nearly
approximates a
pro rata
selection as the Trustee deems fair and appropriate) unless otherwise
16
required by law or applicable stock exchange or Depositary requirements. The Trustee will not
be liable for selections made by it as contemplated in this section.
No Securities of a Series in principal amount of $1,000 or less can be redeemed in part.
Notices of purchase or redemption will be given to each Holder pursuant to Section 3.3 and
Section 10.1.
Section 3.3.
Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution, Officers Certificate
or supplemental indenture, at least 30 days but not more than 60 days before a redemption date, the
Issuer will deliver a notice of redemption to each Holder whose Securities are to be redeemed in
accordance with Section 10.1, except that redemption notices may be given more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of the Securities or a
satisfaction and discharge of this Indenture pursuant to Article VIII hereof.
The notice shall identify the Securities to be redeemed and corresponding CUSIP, ISIN or
Common Code numbers, as applicable, and will state:
(a) the redemption date;
(b) the redemption price and the amount of accrued interest, if any, to be paid;
(c) if any Global Security is being redeemed in part, the portion of the principal
amount of such Global Security to be redeemed and that, after the redemption date upon
surrender of such Global Security, the principal amount thereof will be decreased by the
portion thereof redeemed pursuant thereto;
(d) if any Certificated Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed, and that, after the redemption date, upon
surrender of such Security, a new Certificated Security or Certificated Securities in
principal amount equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Certificated Security;
(e) the name and address of the Paying Agent(s) to which the Securities are to be
surrendered for redemption;
(f) that Securities called for redemption must be surrendered to the relevant Paying
Agent to collect the redemption price, plus accrued and unpaid interest, if any;
(g) that, unless the Issuer defaults in making such redemption payment, interest on
Securities called for redemption cease to accrue on and after the redemption date;
17
(h) that Securities of the Series called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(i) the paragraph of the Securities and/or Section of this Indenture pursuant to which
the Securities called for redemption are being redeemed; and
(j) that no representation is made as to the correctness or accuracy of the CUSIP, ISIN
or Common Code numbers, if any, listed in such notice or printed on the Securities.
At the Issuers written request, the Trustee shall give the notice of redemption in the
Issuers name and at its expense;
provided
,
however
, that the Issuer has delivered to the Trustee,
at least 40 days prior to the redemption date (or such shorter period of time as the Trustee may
permit), an Officers Certificate requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in the preceding paragraph.
Section 3.4.
Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. Unless otherwise indicated for a particular Series by Board Resolution, Officers
Certificate or supplemental indenture, a notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued
interest to the redemption date.
On or after any purchase or redemption date, unless the Issuer defaults in payment of the
purchase or redemption price, interest shall cease to accrue on Securities or portions thereof
tendered for purchase or called for redemption.
Section 3.5.
Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on the redemption date, the Issuer shall deposit
with the Paying Agent money in immediately available funds sufficient to pay the redemption price
of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6.
Securities Redeemed in Part.
Upon surrender of a Certificated Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Certificated Security of the same Series and the same maturity
equal in principal amount to the unredeemed portion of the Security surrendered.
In relation to Certificated Securities, a new Security in principal amount equal to the
unpurchased or unredeemed portion of any Security purchased or redeemed in part will be issued in
the name of the Holder thereof upon cancellation of the original Certificated Security.
18
Section 3.7.
Sinking Fund.
Unless otherwise indicated for a particular Series by Board Resolution, Officers Certificate
or supplemental indenture, the provisions of Sections 3.7, 3.8 and 3.9 shall be applicable to any
sinking fund for the retirement of Securities of a Series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
Series is referred to as a mandatory sinking fund payment, and any payment in excess of such
minimum amount provided for by the terms of Securities of any Series is referred to as an optional
sinking fund payment. If provided for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section 3.8. Each sinking
fund payment shall be applied to the redemption of Securities of any Series as provided for by the
terms of Securities of such Series.
Section 3.8.
Satisfaction of Sinking Fund Payments with Securities.
The Issuer (i) may deliver outstanding Securities of a Series other than any Securities
previously called for redemption and (ii) may apply as a credit Securities of a Series that have
been redeemed either at the election of the Issuer pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such Series required to be made pursuant to the terms of such
Securities, 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 for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 3.9.
Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any Series of Securities,
the Issuer 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 the Series, the portion
thereof, if any, that 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 2.2), the portion thereof,
if any, that is to be satisfied by delivering and crediting Securities of that Series pursuant to
Section 3.8 and the basis for such credit. Together with such Officers Certificate, the Issuer
will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Issuer in the manner provided in
Section 3.3.
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ARTICLE IV.
COVENANTS
Section 4.1.
Payment of Principal, Premium and Interest.
The Issuer covenants and agrees for the benefit of the Holders of each Series of Securities
that it will duly and punctually pay the principal of, premium, if any, and interest, on the
Securities of that Series in accordance with the terms of such Securities and this Indenture.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture for
a particular Series, on or before 10:00 a.m., New York City time, on the applicable payment date,
the Issuer shall deposit with the Paying Agent money sufficient to pay the principal of, premium,
if any, and interest on the Securities of each such Series in accordance with the terms of such
Securities and this Indenture.
Section 4.2.
Compliance Certificate.
The Issuer and the Parent Guarantor shall deliver to the Trustee, within 120 days after the
end of its fiscal year of the Issuer and the Parent Guarantor (which as of the date of this
Indenture is December 31, or if the fiscal year with respect to the Issuer or the Parent Guarantor,
as the case may be, is changed, such other fiscal year end date as the Issuer or the Parent
Guarantor, as the case may be, shall notify to the Trustee in writing), an Officers Certificate
stating that a review of the activities of the Issuer, the Parent Guarantor and the Subsidiaries of
each during the preceding fiscal year has been made under the supervision of the signing Officer
with a view to determining whether the Issuer or the Parent Guarantor, as the case may be, has
kept, observed, performed and fulfilled its obligations under this Indenture, and further stating,
as to each such Officer signing such certificate, that to his/her knowledge the Issuer or the
Parent Guarantor, as the case may be, is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he may have knowledge). Such
Officers Certificate need not include a reference to any non-compliance that has been fully cured
prior to the date as of which such certificate speaks.
The Issuer will, so long as any of the Securities are outstanding, deliver to the Trustee,
within 30 days upon becoming aware of any Default or Event of Default, an Officers Certificate
specifying such Default or Event of Default and what action the Issuer is taking or proposes to
take with respect thereto.
Section 4.3.
Stay, Extension and Usury Laws.
Each of the Issuer and the Parent Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Indenture or the
Securities; and each of the Issuer and the Parent Guarantor (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of any power herein
20
granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.4.
Corporate Existence.
Subject to Article V, each of the Issuer and the Parent Guarantor will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate existence and
rights (charter and statutory);
provided
,
however
, that neither Issuer nor the Parent Guarantor
shall be required to preserve any such right if its Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of its business and its Subsidiaries
taken as a whole and that the loss thereof is not adverse in any material respect to the Holders of
the Securities.
Section 4.5.
Reports.
(a) So long as any Securities are outstanding, the Issuer shall file with the Trustee,
within 15 days after the Parent Guarantor files with the SEC, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations prescribe) that the
Parent Guarantor may be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act. The Issuer shall be deemed to have complied with the previous
sentence to the extent that such information, documents and reports are filed with the SEC
via EDGAR (or any successor electronic delivery procedure).
(b) Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustees receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information
contained therein, including the Issuers compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE V.
SUCCESSORS
Section 5.1.
Consolidation, Merger and Sale of Assets.
The Issuer may not, directly or indirectly: (x) consolidate or merge with or into or wind up
into another Person (whether or not the Issuer is the surviving Person); or (y) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of its properties or assets, in
one or more related transactions, to another Person; unless:
(a) either: (i) the Issuer is the surviving Person; or (ii) the Person formed by or
surviving any such consolidation or merger (if other than the Issuer) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is a corporation,
limited liability company or limited partnership organized or existing under the laws of the
jurisdiction of organization of the Issuer or the United States, any state of
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the United States, the District of Columbia or any territory thereof (the Issuer or
such Person, as the case may be, hereinafter referred to as the
Successor
Company
);
(b) the Successor Company (if other than the Issuer) expressly assumes all the
obligations of the Issuer under the Securities and the Indenture;
(c) immediately after such transaction no Default or Event of Default exists;
(d) the Issuer shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
amendment or supplement (if any) comply with the Indenture.
The Successor Company shall succeed to, and be substituted for, the Issuer under this
Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1.
Events of Default.
The following are
Events of Default
with respect to the Securities of any Series, unless in
the establishing Board Resolution, Officers Certificate or supplemental indenture, it is provided
that such Series shall not have the benefit of said Event of Default:
(a) the Issuer defaults in payment when due and payable, upon redemption, acceleration
or otherwise, of principal of, or premium, if any, on the Notes;
(b) the Issuer defaults in the payment when due of interest on or with respect to the
Notes and such default continues for a period of 30 days;
(c) the Issuer defaults in the performance of, or breaches any covenant, warranty or
other agreement contained in this Indenture (other than a default in the performance or
breach of a covenant, warranty or agreement which is specifically dealt with in clauses (a)
or (b) above) and such default or breach continues for a period of 90 days after the notice
specified below;
(d) the Issuer or the Parent Guarantor pursuant to or within the meaning of any
Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an involuntary
case,
(3) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(4) makes a general assignment for the benefit of its creditors, or
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(5) generally is unable to pay its debts as the same become due; or
(e) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(1) is for relief against the Issuer or the Parent Guarantor in an involuntary
case,
(2) appoints a Custodian of the Issuer or the Parent Guarantor or for all or
substantially all of its property, or
(3) orders the liquidation of the Issuer or the Parent Guarantor,
and the order or decree remains unstayed and in effect for 60 days;
(f) the Parent Guarantee with respect to the Securities of such Series shall for any
reason cease to be, or shall for any reason be asserted in writing by the Parent Guarantor
or the Issuer not to be, in full force and effect and enforceable in accordance with its
terms except to the extent contemplated by this Indenture and such Parent Guarantee; or
(g) any other Event of Default provided in the supplemental indenture or Board
Resolution under which such Series of Securities is issued or in the form of Security for
such Series.
The term
Bankruptcy Law
means title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term
Custodian
means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
A Default under one Series of Securities issued under this Indenture will not necessarily be a
default under another Series of Securities under this Indenture.
Section 6.2.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default for a Series of Securities occurs and is continuing (other than an
Event of Default referred to in Section 6.1(e) or (f)), the Trustee or the Holders of at least 25%
in principal amount of such Series of Securities may declare the unpaid principal of all such
Securities to be due and payable by notice in writing to the Issuer and the Trustee specifying the
respective Event of Default and that it is a notice of acceleration (the Acceleration Notice),
and the same shall become immediately due and payable. If an Event of Default referred to in
Section 6.1(e) or (f) occurs, the principal amount plus accrued and unpaid interest on such Series
of Securities will become immediately due and payable without any action on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article VI provided, the Holders of a majority in principal amount of the
outstanding Securities of that Series, by written notice to the Issuer and the
23
Trustee, may rescind and annul such declaration and its consequences if all Events of Default
with respect to Securities of that Series, other than the non-payment of the principal and
interest, if any, of Securities of that Series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.3.
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Issuer covenants that if
(a) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security at the Maturity
thereof, or
(c) default is made in the deposit of any sinking fund payment when and as due by the
terms of a Security,
then,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and any overdue interest at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer, the Parent Guarantor or any other obligor upon such Securities
and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Issuer, the Parent Guarantor or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 6.4.
Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
24
Issuer, the Parent Guarantor or any other obligor upon the Securities or the property of the
Issuer, the Parent Guarantor or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the
Issuer for the payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and
unpaid with respect to the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.6.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote with respect to the claim of any Holder in any such proceeding.
Section 6.5.
Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
with respect to which such judgment has been recovered.
Section 6.6.
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article VI shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.6;
25
Second: To the payment of the amounts then due and unpaid for principal of, premium, if any,
and interest on the Securities with respect to which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and interest, respectively; and
Third: To the Issuer.
Section 6.7.
Limitation on Suits.
A Holder of Securities of any Series may pursue any remedy under this Indenture applicable to
such Securities only if:
(a) the Holder gives the Trustee written notice of a continuing Event of Default for
such Series of Securities;
(b) the Holders of at least 25% in principal amount of such outstanding Series of
Securities make a written request to the Trustee to pursue the remedy;
(c) the Holders furnish to the Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in compliance with
such request;
(d) the Trustee fails to act for a period of 60 days after receipt of notice and
furnishing of indemnity; and
(e) during that 60-day period, the Holders of a majority in principal amount of such
Securities do not give the Trustee a direction inconsistent with the request.
This provision does not, however, affect the right of a Holder of Securities to sue for
enforcement of any overdue payment with respect to such Securities.
Section 6.8.
Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and
interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 6.9.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Issuer, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all
26
rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 6.10.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not,
to the extent permitted by law, prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.11.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12.
Control by Holders.
The Holders of a majority in principal amount of the outstanding Securities of any Series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(c) the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability or that it will not
be adequately indemnified against the costs, expenses and liabilities which might be
incurred by it in complying with such direction.
Section 6.13.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the outstanding Securities of
any Series may on behalf of the Holders of all the Securities of such Series waive an existing
Default or Event of Default hereunder with respect to such Series and its consequences, except a
Default in the payment of the principal of or interest on any Security of
27
such Series (
provided
,
however
, that the Holders of a majority in principal amount of the outstanding Securities of any
Series may rescind an acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.14.
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Issuer
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the outstanding Securities of any
Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal
of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1.
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in such exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to the Securities
of any Series:
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(1)
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the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(2)
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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 such certificates
and opinions to determine whether, on
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28
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their face, they appear to
conform to the requirements of this Indenture.
|
(c) The Trustee may not be relieved from liabilities for its own grossly negligent
action, its own grossly negligent failure to act or its own willful misconduct, except that:
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(1)
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this paragraph does not limit the effect of
paragraph (b) of this Section 7.1; and
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(2)
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the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was grossly negligent in ascertaining the
pertinent facts.
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(d) Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to the provisions of this Article VII.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability. The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity reasonably satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on or investment of any money received
by it except as the Trustee may agree in writing with the Issuer. Money held in trust by
the Trustee need not be segregated from other funds except to the extent required by law.
All money received by the Trustee shall, until applied as herein provided, be held in trust
for the payment of the principal of and premium (if any) and interest on the Securities.
Section 7.2.
Rights of Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, note, debenture or other paper or
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 any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, security or other paper or document.
(b) Before the Trustee acts or refrains from acting, it may require instruction, an
Officers Certificate or an Opinion of Counsel or both to be provided by the Issuer.
The Trustee shall not be liable for any action it takes or omits to take in good faith
in reliance on such instruction, Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection with respect to any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
29
(c) The Trustee may act through agents, attorneys, custodians or nominees and shall not
be responsible for the misconduct or negligence of any agent, attorney, custodian or nominee
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 conferred upon it by
this Indenture or with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it from the Holders of a majority in aggregate
principal amount of the relevant Series of Securities.
(e) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuer shall be sufficient if signed by an Officer of the
Issuer.
(f) Anything in this Indenture to the contrary notwithstanding, in no event shall the
Trustee be liable under or in connection with this Indenture for indirect, special,
incidental, punitive or consequential losses or damages of any kind whatsoever, including
but not limited to lost profits, whether or not foreseeable, even if the Trustee has been
advised of the possibility thereof and regardless of the form of action in which such
damages are sought.
(g) The Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or direction of any of the Holders of
Securities pursuant to the provisions of this Indenture, unless such Holders of Securities
shall have offered to the Trustee, security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred therein or
thereby.
(h) The Trustee shall not be deemed to have notice of any Event of Default with respect
to the Securities unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is received by a
Responsible Officer at the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture.
(i) The Trustee may at any time request, and the Issuer shall deliver an Officers
Certificate setting forth the specimen signatures and the names of individuals and/or titles
of Officers authorized at such time to take specified actions pursuant to this Indenture,
which Officers Certificate may be signed by any Person authorized to sign an Officers
Certificate, including any Person specified as so authorized in any such certificate
previously delivered and not superseded.
(j) Notwithstanding any provision herein to the contrary, in no event shall the Trustee
be liable for any failure or delay in the performance of its obligations under this
Indenture because of circumstances beyond its control, including, but not limited to, acts
of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work
stoppages for any reason, embargo, government action, including any laws, ordinances,
regulations or the like which restrict or prohibit the providing of the services
30
contemplated by this Indenture, inability to obtain material, equipment, or communications
or computer facilities, or the failure of equipment or interruption of communications or
computer facilities, and other causes beyond its control whether or not of the same class or
kind as specifically named above.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, each Agent, and each other agent, custodian and
other Person employed to act hereunder.
Section 7.3.
May Hold Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Issuer or any of its Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights and duties.
However, the Trustee is subject to Sections 7.9 and 7.10.
Section 7.4.
Trustees Disclaimer.
The Trustee makes no representation as to the validity, sufficiency or adequacy of any
offering materials, this Indenture or the Securities, it shall not be accountable for the Issuers
use of the proceeds from the Securities or any money paid to the Issuer or upon the Issuers
direction under any provision hereof, it shall not be responsible for any statement or recital
herein or any statement in any offering materials or the Securities other than its certificate of
authentication.
Section 7.5.
Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any Series occurs and is
continuing and it is actually known to the Trustee, the Trustee shall mail to Holders of Securities
of such Series a notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of and premium (if any) and
interest on any sinking fund installment with respect to the Securities of such Series, the Trustee
may withhold the notice if and so long as a Responsible Officer in good faith determines that
withholding the notice is in the interests of Holders of Securities of such Series to do so.
Section 7.6.
Compensation and Indemnity.
The Issuer agrees to pay to the Trustee for its acceptance of this Indenture and services
hereunder such compensation as the Issuer and the Trustee shall from time to time agree in writing.
The Trustees compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer agrees to reimburse the Trustee upon request for all
reasonable disbursements, advances and expenses incurred by it. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustees agents and counsel.
The Issuer and the Parent Guarantor shall indemnify the Trustee from, and hold it harmless
against any damage, cost, claim, loss, liability or expense (including the reasonable fees
31
and expenses of the Trustees agents and counsel) incurred by it arising out of or in connection with
its acceptance and administration of the trusts set forth under this Indenture, the performance of
its obligations and/or the exercise of its rights hereunder, including the reasonable costs and
expenses of defending itself against any claim, except as set forth in the next following
paragraph. The Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. The Issuer shall defend the claim, with counsel reasonably acceptable to the Trustee,
and the Trustee shall cooperate in the defense, unless, the Trustee, in its reasonable discretion,
determines that any actual or potential conflict of interest may exist, in which case the Trustee
may have separate counsel, reasonably acceptable to the Issuer and the Issuer shall pay the
reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made
without its consent.
The Issuer shall not be obligated to reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustees own gross negligence or bad faith.
To secure the payment obligations of the Issuer in this Section 7.6, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay principal of and premium (if any) and interest on Securities of any Series.
Such lien and the obligations of the Issuer and the Parent Guarantor under this Section 7.6 shall
survive the satisfaction and discharge of this Indenture, the payment of the Securities and/or the
resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services in connection with an Event of Default,
the expenses (including the reasonable charges and expenses of its counsel) and the compensation
for the services are intended to constitute expenses of administration under any applicable Federal
or State bankruptcy, insolvency or other similar law.
Section 7.7.
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.7.
The Trustee may resign and be discharged at any time with respect to the Securities of one or
more Series by so notifying the Issuer. The Holders of a majority in principal amount of the then
outstanding Securities of any Series may remove the Trustee with respect to the Securities of such
Series by so notifying the Trustee and the Issuer. The Issuer may remove the Trustee for any or
all Series of the Securities if:
(a) the Trustee fails to comply with Section 7.9;
(b) the Trustee is adjudged as bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
32
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more Series, the Issuer shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those Series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such Series). Within one year after the successor Trustee with respect to the
Securities of any Series takes office, the Holders of a majority in principal amount of the
Securities of such Series then outstanding may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuer.
If a successor Trustee with respect to the Securities of any Series does not take office
within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer
or the Holders of at least 10% in principal amount of the then outstanding Securities of such
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such Series.
If the Trustee with respect to the Securities of a Series fails to comply with Section 7.9,
any Holder of Securities of such Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
such Series.
In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and
to the Issuer. 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 retiring
Trustee under this Indenture. The successor Trustee shall give a notice of its succession to
Holders in accordance with Section 10.2. 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 7.6.
In case of the appointment of a successor Trustee with respect to the Securities of one or
more Series, the Issuer, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more Series shall execute and deliver an indenture supplemental hereto in
which each successor Trustee shall accept such appointment and that (1) shall confer to each
successor Trustee all the rights, powers and duties of the retiring Trustee with respect to the
Securities of that or those Series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall confirm that all the
rights, powers and duties of the retiring Trustee with respect to the Securities of that or those
Series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee. Nothing
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, and each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee. Upon the
execution and delivery of such supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee shall
have all the rights, powers and duties of the retiring Trustee with respect to the Securities of
that or those Series to which the appointment of such successor Trustee relates. On request of the
Issuer, or
33
any successor Trustee, such retiring Trustee shall transfer to such successor Trustee
all property held by such retiring Trustee as Trustee with respect to the Securities of that or
those Series to which the appointment of such successor Trustee relates. Such retiring Trustee
shall, however, have the right to deduct its unpaid fees and expenses, including attorneys fees.
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.7, the
obligations of the Issuer and the Parent Guarantor under Section 7.6 shall continue for the benefit
of the retiring Trustee or Trustees.
Section 7.8.
Successor Trustee by Merger, etc.
Subject to Section 7.9, if the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business (including this transaction) to, another
corporation, the successor corporation without any further act shall be the successor Trustee.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated; 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 7.9.
Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States, any State thereof or the District of Columbia
and authorized under such laws to exercise corporate trust power, shall be subject to supervision
or examination by Federal or State (or the District of Columbia) authority and shall have, or be a
subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
Section 7.10.
Preferential Collection of Claims Against Issuer.
The Trustee is subject to and shall comply with the provisions of the Trust Indenture Act of
1933, as amended (the
TIA
) § 311(a), as if such section applied hereto, excluding any creditor
relationship listed in TIA § 311(b). A Trustee who has resigned or been
removed shall be subject to TIA § 311(a), as if such section applied hereto, to the extent
indicated therein.
34
ARTICLE VIII.
DISCHARGE OF INDENTURE
Section 8.1.
Termination of Issuers Obligations.
(a) This Indenture shall cease to be of further effect with respect to the Securities of a
Series (except that all obligations of the Issuer and the Parent Guarantor under Section 7.6, the
Trustees and Paying Agents obligations under Section 8.3 and the rights, powers, protections and
privileges accorded the Trustee under Article VII shall survive), and the Trustee, on written
demand of the Issuer shall execute instruments acknowledging the satisfaction and discharge of this
Indenture with respect to the Securities of such Series, when:
(A) all outstanding Securities of such Series theretofore
authenticated and issued (other than destroyed, lost or stolen
Securities that have been replaced or paid) have been delivered
to the Trustee for cancellation; or
(B) all outstanding Securities of such Series not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuer,
and, in the case of clause (i), (ii) or (iii) above, the Issuer or the Parent Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as funds (immediately
available to the Holders in the case of clause (i)) in trust for such purpose (x) cash in an
amount, or (y) Government Obligations, maturing as to principal and interest at such times
and in such amounts as will ensure the availability of cash in an amount or (z) a
combination thereof which will be sufficient, in the opinion (in the case of (y) or (z)) of
a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness
on the Securities of such Series for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or for principal, premium, if any,
and interest to the Stated Maturity or redemption date, as the case may be; or
(C) the Issuer or the Parent Guarantor has properly fulfilled
such other means of satisfaction and discharge, as contemplated
by Section 2.2 to be applicable to the Securities of such Series;
35
(2) the Issuer or the Parent Guarantor has paid or caused to be paid all other
sums payable by it hereunder with respect to the Securities of such Series; and
(3) the Issuer or the Parent Guarantor, as the case may be, has delivered to
the Trustee an Officers Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture with respect to the Securities of such
Series have been complied with, together with an Opinion of Counsel to the same
effect.
(b) Unless this Section 8.1(b) is specified as not being applicable to Securities of a Series
as contemplated by Section 2.2, each of the Issuer and the Parent Guarantor may terminate certain
of its obligations under this Indenture (
covenant defeasance
) with respect to the Securities of a
Series if:
(1) either the Issuer or the Parent Guarantor has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of Securities of such Series, (i)
money, or (ii) Government Obligations with respect to such Series, maturing as to
principal and interest at such times and in such amounts as will ensure the
availability of money in the currency in which payment of the Securities of such
Series is to be made in an amount or (iii) a combination thereof, that is
sufficient, in the opinion (in the case of (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the principal of and premium
(if any) and interest on all Securities of such Series on each date that such
principal, premium (if any) or interest is due and payable and (at the Stated
Maturity thereof or upon redemption as provided in Section 8.1(e)) to pay all other
sums payable by it hereunder; provided that the Trustee shall have been irrevocably
instructed to apply such money and/or the proceeds of such Government Obligations to
the payment of said principal, premium (if any) and interest with respect to the
Securities of such Series as the same shall become due;
(2) the Issuer or the Parent Guarantor, as the case may be, has delivered to
the Trustee an Officers Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture with respect to the Securities of such
Series have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit and the grant of any lien securing such borrowings);
(4) the Issuer or the Parent Guarantor, as the case may be, shall have
delivered to the Trustee an Opinion of Counsel from a nationally recognized
36
counsel acceptable to the Trustee or a tax ruling to the effect that the Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of such
Issuer or Parent Guarantors exercise of its option under this Section 8.1(b) and
will be subject to Federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had not been exercised;
and
(5) the Issuer and the Parent Guarantor have complied with any additional
conditions specified pursuant to Section 2.2 to be applicable to the discharge of
Securities of such Series pursuant to this Section 8.1.
In such event, this Indenture shall cease to be of further effect (except as set forth in this
paragraph), and the Trustee, on written demand of the Issuer or the Parent Guarantor, as the case
may be, shall execute instruments acknowledging satisfaction and discharge under this Indenture.
However, the Issuers obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 4.1, 5.1, 7.6 and 7.7, the
Parent Guarantors obligations in Section 5.1 and 7.6, the Trustees and Paying Agents obligations
in Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under
Article VII shall survive until all Securities of such Series are no longer outstanding.
Thereafter, only the obligations of the Issuer and the Parent Guarantor in Section 7.6 and the
Trustees and Paying Agents obligations in Section 8.3 shall survive with respect to Securities of
such Series.
In order to have money available on a payment date to pay principal of or premium (if any) or
interest on the Securities, the Government Obligations shall be payable as to principal or interest
on or before such payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the Issuers option.
(c) If the Issuer or the Parent Guarantor, as the case may be, has previously complied or is
concurrently complying with the conditions set forth in Section 8.1(b) (other than any additional
conditions specified pursuant to Section 2.2 that are expressly applicable only to covenant
defeasance) with respect to Securities of a Series, then unless this Section 8.1(c) is specified as
not being applicable to Securities of such Series as contemplated by Section 2.2, each of the
Issuer and the Parent Guarantor may elect to be discharged (
legal defeasance
) from its
obligations to make payments with respect to Securities of such Series, if:
(1) unless otherwise specified with respect to Securities of such Series as
contemplated by Section 2.2, the Issuer or the Parent Guarantor, as the case may be,
has delivered to the Trustee an Opinion of Counsel from a nationally recognized
counsel acceptable to the Trustee to the effect referred to in Section 8.1(b)(4)
with respect to such legal defeasance, which opinion is based on (i) a private
ruling of the Internal Revenue Service addressed to the Issuer or the Parent
Guarantor, as the case may be, (ii) a published ruling of the Internal
Revenue Service or (iii) a change in the applicable federal income tax law
(including regulations) after the date of this Indenture; the Issuer or the Parent
Guarantor, as the case may be, has complied with any other conditions specified
pursuant to Section 2.2 to be applicable to the legal defeasance of Securities of
such Series pursuant to this Section 8.1(c); and
37
(2) the Issuer or the Parent Guarantor, as the case may be, has delivered to
the Trustee a Company Request requesting such legal defeasance of the Securities of
such Series and an Officers Certificate stating that all conditions precedent with
respect to such legal defeasance of the Securities of such Series have been complied
with, together with an Opinion of Counsel to the same effect.
In such event, each of the Issuer and the Parent Guarantor will be discharged from its
obligations under this Indenture and the Securities of such Series to pay principal of and premium
(if any) and interest on Securities of such Series, the Issuers obligations under Sections 4.1 and
5.1 and the Parent Guarantors obligations under Section 5.1 shall terminate with respect to such
Securities, and the entire indebtedness of the Issuer evidenced by such Securities shall be deemed
paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or
defeasance of Securities of a Series are specified to be applicable to such Series as contemplated
by Section 2.2, each of the Issuer and the Parent Guarantor may terminate any or all of its
obligations under this Indenture with respect to the Securities of a Series and any or all of its
obligations under the Securities of such Series if it fulfills such other means of satisfaction and
discharge as may be so specified, as contemplated by Section 2.2, to be applicable to the
Securities of such Series.
(e) If Securities of any Series subject to subsections (a), (b), (c) or (d) of this Section
8.1 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the Issuer shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption
in the name, and at the expense, of the Issuer.
Section 8.2.
Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Issuer shall hold in trust money
or Government Obligations deposited with it pursuant to Section 8.1 hereof. It shall apply the
deposited money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and premium (if any) and interest on
the Securities of the Series with respect to which the deposit was made.
Section 8.3.
Repayment to Issuer or Parent Guarantor.
The Trustee and the Paying Agent shall promptly pay to the Issuer or the Parent Guarantor, as
the case may be, upon written request any excess money or Government Obligations (or proceeds
therefrom) held by them at any time upon the written request of the Issuer or the Parent Guarantor,
as the case may be.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the
Paying Agent shall pay to the Issuer or the Parent Guarantor, as the case may be, upon written
request any money held by them for the payment of principal, premium (if any) or interest that
remains unclaimed for two years after the date upon which such payment shall have become due.
After payment to the Issuer or the Parent Guarantor, as the case may be, Holders
38
entitled to the
money must look to the Issuer for payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of the Trustee and the Paying Agent with
respect to such money shall cease.
Section 8.4.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations
deposited with respect to Securities of any Series in accordance with Section 8.1 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 obligations of the Issuer and
the Parent Guarantor under this Indenture with respect to the Securities of such Series and under
the Securities of such Series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply
all such money or Government Obligations in accordance with Section 8.1;
provided
,
however
, that if
the Issuer or the Parent Guarantor has made any payment of principal of, premium (if any) or
interest on any Securities because of the reinstatement of its obligations, the Issuer or the
Parent Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or Government Obligations held by the Trustee or
the Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1.
Without Consent of Holders.
Without the consent of any Holder of Securities of a Series, the Issuer, the Parent Guarantor
and the Trustee may amend or supplement this Indenture or the Series of Securities in the following
circumstances:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to provide for the assumption of the Issuer or the Parent Guarantors
obligations under this Indenture by a successor upon any merger, consolidation or
transfer of substantially all of the assets of the Issuer or the Parent Guarantor,
as the case may be;
(3) to provide for uncertificated Securities in addition to or in place of
Certificated Securities;
(4) to provide any security for or guarantees, supplemental to the Parent
Guarantee, of its Securities or for the addition of an additional obligor on its
Securities;
(5) to comply with any requirement to effect or maintain the qualification of
this Indenture under the Trust Indenture Act of 1939, as amended, if applicable;
39
(6) to add covenants that would benefit the Holders of its Securities or to
surrender any rights the Issuer or the Parent Guarantor has under this Indenture;
(7) to change or eliminate any of the provisions of this Indenture,
provided
that any such change or elimination shall not become effective with respect to any
outstanding Securities of any Series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
(8) to provide for the issuance of and establish forms and terms and conditions
of a new Series of Securities;
(9) to permit or facilitate the defeasance and discharge of the Securities;
(10) to issue additional Securities of any Series,
provided
that such
additional Securities have the same terms as, and be deemed part of the same Series
as, the applicable Series of Securities to the extent required under this Indenture;
(11) to evidence and provide for the acceptance of and appointment by a
successor trustee with respect to the Securities of one or more Series and to add to
or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trust by more than one trustee;
(12) to add additional Events of Default with respect to Securities; and
(13) to make any change that does not adversely affect any of its outstanding
Securities in any material respect.
Section 9.2.
With Consent of Holders.
This Indenture or the Securities of a Series may be amended or supplemented, and waivers may
be obtained, with the consent of the Holders of at least a majority in aggregate principal amount
of the then outstanding Securities of such Series voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase of, such Securities
of a Series), and any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium on, if any or interest, if any, on, such
Securities of a Series, except a payment Default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Securities of such Series may
be waived with the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Securities of such Series voting as a single class (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for, such Securities of a Series).
The Holders of a majority in principal amount of the outstanding Securities of a Series issued
by the Issuer may waive any existing or past Default or Event of Default with respect to those
Securities. Those Holders may not, however, waive any Default or Event of Default in any payment
on any Security.
40
For the avoidance of doubt, any amendment, supplement or waiver to any Series of Securities
made with the consent of Holders of such Series of Securities, shall be made with respect to that
Series of Securities only, and not any other Series of Securities.
Section 9.3.
Limitations.
Without the consent of each Holder of Securities of a Series affected thereby, an amendment,
supplement or waiver may not (with respect to any Securities of such Series held by a
non-consenting Holder):
(1) reduce the amount of the Securities of such Series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest on the
Securities of such Series;
(3) reduce the principal of the Securities of such Series or change the Stated
Maturity of the Securities of such Series;
(4) reduce any premium payable on the redemption of the Securities of such
Series or change the time at which the Securities of such Series may or must be
redeemed;
(5) make payments on the Security of such Series payable in currency other than
as originally stated in such Security;
(6) impair the Holders right to institute suit for the enforcement of any
payment on the Security of such Series;
(7) make any change in the percentage of principal amount of the Securities of
such Series necessary to waive compliance with Sections 6.8 and 6.13 of this
Indenture or to make any change in this Section 9.3(8); or
(8) waive a continuing Default or Event of Default regarding any payment on
Securities of such Series.
In the event that consent is obtained from some of the Holders but not from all of the Holders
with respect to any amendments or waivers pursuant to clauses (1) through (8) of this Section 9.3,
new Securities of such Series with such amendments or waivers will be issued to those consenting
Holders. Such new Securities shall have separate CUSIP numbers and ISINs from those Securities of
such Series held by non-consenting Holders.
Section 9.4.
Form of Amendments.
Every amendment to this Indenture or the Securities of one or more Series shall be set forth
in a supplemental indenture.
41
Section 9.5.
Revocation and Effect of Consents.
Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holders Security, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if
the Trustee receives the written notice of revocation before the date of the supplemental indenture
or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (1) through (8) of
Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holders Security.
Section 9.6.
Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Issuer, in exchange for its Securities of that Series,
may issue and the Trustee shall authenticate upon request new Securities of that Series that
reflect the amendment or waiver.
Section 9.7.
Trustee Protected.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any supplemental indentures which affect the Trustees own rights, duties, immunities, or
indemnities under this Indenture, the Securities or otherwise.
ARTICLE X.
MISCELLANEOUS
Section 10.1.
Notices.
Any request, direction, instruction, demand, document, notice or communication by the Issuer,
the Parent Guarantor or the Trustee to the other, or by a Holder to the Issuer, the Parent
Guarantor or the Trustee, shall be in English and in writing and delivered in person, mailed by
first-class mail, delivered via facsimile or delivered by overnight courier as follows:
42
if to the Issuer:
Celanese US Holdings LLC
1601 West LBJ Freeway
Dallas, Texas 75234
Fax: (214) 258-9730
Attention: General Counsel
if to the Parent Guarantor:
Celanese Corporation
1601 West LBJ Freeway
Dallas, Texas 75234
Fax: (214) 258-9730
Attention: General Counsel
in either case, with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Fax: (212) 351-4035
Attention: Andrew L. Fabens
if to the Trustee:
Wells Fargo Bank, N.A.
201 Main Street, Suite 301
MAC: T T5441-030
Fort Worth, TX 76102
Fax: (817) 885-8650
Notices shall be effective upon the recipients actual receipt thereof. Any party by notice
to the other parties may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to (i) a Securityholder of a Certificated Security shall be mailed
by first-class mail to his address shown on the register kept by the Registrar (ii) a
Securityholder of a Global Security shall be delivered to the Depositary in accordance with its
applicable procedures. Failure to mail a notice or communication to a Securityholder of any Series
or any defect in it shall not affect its sufficiency with respect to other Securityholders of that
or any other Series.
If a notice or communication to any Securityholder is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the Securityholder
receives it.
43
If the Issuer mails a notice or communication to Securityholders, it shall mail a copy to the
Trustee and each Agent at the same time.
With respect to this Indenture, the Trustee shall not have any duty or obligation to verify or
confirm that the Person sending instructions, directions, reports, notices or other communications
or information by electronic transmission is, in fact, a Person authorized to give such
instructions, directions, reports, notices or other communications or information on behalf of the
party purporting to send such electronic transmission; and the Trustee shall not have any liability
for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of
such reliance upon or compliance with such instructions, directions, reports, notices or other
communications or information. Each other party agrees to assume all risks arising out of the use
of electronic methods to submit instructions, directions, reports, notices or other communications
or information to the Trustee, including the risk of the Trustee acting on unauthorized
instructions, notices, reports or other communications or information, and the risk of interception
and misuse by third parties.
Section 10.2.
Communication by Holders with Other Holders.
Securityholders of a Series may communicate pursuant to TIA § 312(b), as if such section
applied hereto, with other Securityholders of such Series with respect to their rights under this
Indenture or the Securities.
Section 10.3.
Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or the Parent Guarantor to the Trustee to take
any action under this Indenture, the Issuer or the Parent Guarantor shall furnish to the Trustee:
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1.
|
|
an Officers Certificate stating that, in
the opinion of the signer, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
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2.
|
|
an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been
complied with.
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Section 10.4.
Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
|
1.
|
|
a statement that the Person making such
certificate or opinion has read such covenant or condition;
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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;
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44
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3.
|
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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
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4.
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a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied
with.
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Section 10.5.
Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 10.6.
Legal Holidays.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
for a particular Series, a
Legal Holiday
is any day that is not a Business Day. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.7.
No Personal Liability of Directors, Officers, Employees and Certain
Others.
No director, officer, employee, incorporator or similar founder, stockholder or member of the
Issuer or the Parent Guarantor will have any liability for or any obligations of the Issuer or the
Parent Guarantor, as the case may be, under this Indenture, the Securities or the Parent Guarantees
or for any claim based on, with respect to or by reason of, such obligations or their creation.
Each Holder of Securities by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Securities. The waiver may
not be effective to waive liabilities under the federal securities laws.
Section 10.8.
Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Indenture by facsimile or electronic transmission shall be equally as effective
as delivery of an original executed counterpart of this Indenture. Any party delivering an
executed counterpart of this Indenture by facsimile or electronic transmission also shall deliver
an original executed counterpart of this Indenture, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and binding effect of this Indenture.
45
Section 10.9.
Governing Laws.
THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR
RELATING TO THIS INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW
OTHER THAN THE LAW OF THE STATE OF NEW YORK.
Section 10.10.
No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Issuer, the Parent Guarantor or any Subsidiary of the Issuer or the Parent Guarantor. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.11.
Successors.
All agreements of the Issuer and the Parent Guarantor in this Indenture and the Securities
shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 10.12.
Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.13.
Table of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.14.
Judgment Currency.
The Issuer and the Parent Guarantor agree, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due with respect to the principal of or interest or other amount on
the Securities of any Series (the
Required Currency
) into a currency in which a judgment will be
rendered (the
Judgment Currency
), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the recipient could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the recipient could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding
the day on which final unappealable
46
judgment is entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to be payable with
respect to such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable,
and (iii) shall not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing,
New York Banking Day
means any day except a Saturday,
Sunday or a Legal Holiday in The City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.
Section 10.15.
English Language.
This Indenture has been negotiated and executed in the English language. All certificates,
reports, notices and other documents and communications delivered or delivered pursuant to this
Indenture (including any modifications or supplements hereto), shall be in the English language, or
accompanied by a certified English translation thereof. In the case of any document originally
issued in a language other than English, the English language version of any such document shall
for purposes of this Indenture, and absent manifest error, control the meaning of the matters set
out therein.
Section 10.16.
Submission to Jurisdiction; Appointment of Agent.
Any suit, action or proceeding against the Issuer, the Parent Guarantor or any of their
respective properties, assets or revenues with respect to this Indenture, the Securities or the
Parent Guarantees (a
Related Proceeding
) may be brought in any state or Federal court in the
Borough of Manhattan in The City of New York, New York, as the Person bringing such Related
Proceeding may elect in its sole discretion. Each of the Issuer and the Parent Guarantor hereby
consents to the non-exclusive jurisdiction of each such court for the purpose of any Related
Proceeding and has irrevocably waived any objection to the laying of venue of any Related
Proceeding brought in any such court and to the fullest extent it may effectively do so and the
defense of an inconvenient forum to the maintenance of any Related Proceeding or any such suit,
action or proceeding in any such court. Each of the Issuer and the Parent Guarantor hereby agrees
that service of all writs, claims, process and summonses in any Related Proceeding brought against
it in the State of New York may be made upon CT Corporation System, 111 Eighth Avenue, New York,
New York 10011 (and any successor entity) (the
Process Agent
). Each of the Issuer and the Parent
Guarantor irrevocably appointed the Process Agent as its agent and true and lawful attorney in fact
in its name, place and stead to accept such service of any and all such writs, claims, process and
summonses, and hereby agrees that the failure of the Process Agent to give any notice to it of any
such service of process shall not impair or affect the validity of such service or of any judgment
based thereon. Each of the Issuer and the Parent Guarantor hereby agrees to have an office or to
maintain at all times an agent with offices in the United States of America to act as Process
Agent. Nothing in this Indenture shall in any way be deemed to limit the ability to serve any such
writs, process or summonses in any other manner permitted by applicable law.
47
Section 10.17.
Waiver of Immunity.
To the extent that the Issuer or the Parent Guarantor, as the case may be, has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution or execution, on
the ground of sovereignty or otherwise) with respect to itself or its property, each hereby
irrevocably waives, to the fullest extent permitted by applicable law, such immunity with respect
to its obligations under this Indenture, the Securities or the Parent Guarantees.
Section 10.18.
Waiver of Jury Trial.
EACH OF THE ISSUER, THE PARENT GUARANTOR AND THE TRUSTEE HERETO HEREBY IRREVOCABLY WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
ARTICLE XI.
GUARANTEES
Section 11.01
Parent Guarantee.
The Parent Guarantor hereby fully and unconditionally guarantees (i) to each Holder of each
Security that is authenticated and delivered by the Trustee, and (ii) to the Trustee on behalf of
such Holder, the due and punctual payment of the principal of, premium, if any, and interest on
such Security when and as the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise, in accordance with the terms of such Security and
of this Indenture. In case of the failure of the Issuer punctually to make any such payment, the
Parent Guarantor hereby agrees to cause such payment to be made punctually when and as the same
shall become due and payable, whether at the stated maturity or by acceleration, call for
redemption or otherwise, and as if such payment were made by the Issuer.
The Parent Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, the validity, regularity or
enforceability of such Security or this Indenture, the absence of any action to enforce the same or
any release, amendment, waiver or indulgence granted to the Issuer or the Parent Guarantor or any
consent to departure from any requirement of any other guarantee of all or any of the Securities or
any other circumstances which might otherwise constitute a legal or equitable discharge or defense
of a surety or guarantor. The Parent Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any of the Holders protect,
secure, perfect or insure any security interest in or other lien on any property subject thereto or
exhaust any right or take any action against the Issuer or any other Person or any collateral,
filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer, protest or notice with respect to such Security or
the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Parent
Guarantee will not be discharged in respect of such Security except by complete performance of the
obligations contained in such Security and in such Parent Guarantee. The
48
Parent Guarantor agrees that if, after the occurrence and during the continuance of an Event
of Default, the Trustee or any of the Holders of the applicable Series of Securities are prevented
by applicable law from exercising their respective rights to accelerate the maturity of such
Securities, to collect interest on such Securities, or to enforce or exercise any other right or
remedy with respect to such Securities, the Parent Guarantor agrees to pay to the Trustee for the
account of such Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the Trustee or any of such
Holders.
The Parent Guarantor shall be subrogated to all rights of the holders of the Securities
against the Issuer in respect of any amounts paid by the Parent Guarantor on account of such
Security pursuant to the provisions of its Parent Guarantee or this Indenture; provided, however,
that the Parent Guarantor shall not be entitled to enforce or to receive any payment arising out
of, or based upon, such right of subrogation until the principal of and interest on all Securities
of such Series issued hereunder shall have been paid in full.
The Parent Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any part of the Issuers assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any time payment and
performance of such Securities, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any holder of such Securities, whether as a voidable
preference, fraudulent transfer, or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, such Securities shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Any term or provision of the Parent Guarantee to the contrary notwithstanding, the aggregate
amount of the obligations guaranteed hereunder shall be reduced to the extent necessary to prevent
such Parent Guarantee from violating or becoming voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors
generally.
Section 11.02
Execution and Delivery of Parent Guarantee.
The Parent Guarantee shall include the terms of the Parent Guarantee set forth in Section
11.01 and shall be substantially in the form established pursuant to Section 2.15. The Parent
Guarantor hereby agrees to execute its Parent Guarantee, in a form established pursuant to Section
2.15, on each Security authenticated and delivered by the Trustee.
The Parent Guarantee shall be executed on behalf of the Parent Guarantor by any one of its
chairman of its board of directors, president, vice presidents or other person duly authorized by
the Parent Guarantors board of directors. The signature of any or all of these persons on the
Parent Guarantee may be manual or facsimile.
49
A Parent Guarantee bearing the manual or facsimile signature of individuals who were at any
time the proper officers of the Parent Guarantor shall bind the Parent Guarantor, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication
and delivery of any Security or did not hold such offices at the date of such Parent Guarantee.
The delivery of any Security by the Trustee, after the authentication thereof, shall
constitute due delivery of the Parent Guarantee on behalf of the Parent Guarantor and shall bind
the Parent Guarantor notwithstanding the fact that the Parent Guarantee does not bear the signature
of the Parent Guarantor. The Parent Guarantor agrees that its Parent Guarantee set forth in
Section 11.01 and in the form of Parent Guarantee established pursuant to Section 2.15 shall remain
in full force and effect notwithstanding any failure to execute a Parent Guarantee on any such
Security.
Section 11.03
Release of Parent Guarantee.
Notwithstanding anything in this Article XI to the contrary, concurrently with the payment in
full of the principal of, premium, if any, and interest on Securities of a Series, the Parent
Guarantor shall be released from and relieved of its obligations under this Article XI with respect
to the Securities of such Series. Upon the delivery by the Issuer to the Trustee of an Officers
Certificate and an Opinion of Counsel to the effect that the transaction giving rise to the release
of this Parent Guarantee was made by the Issuer in accordance with the provisions of this Indenture
and the Securities, the Trustee shall execute any documents reasonably required in order to
evidence the release of the Parent Guarantor from its obligations under this Parent Guarantee. If
any of the obligations to pay the principal of, premium, if any, and interest on such Securities
and all other obligations of the Issuer are revived and reinstated after the termination of this
Parent Guarantee, then all of the obligations of the Parent Guarantor under this Parent Guarantee
shall be revived and reinstated as if this Parent Guarantee had not been terminated until such time
as the principal of, premium, if any, and interest on such Securities are paid in full, and the
Parent Guarantor shall enter into an amendment to this Parent Guarantee, reasonably satisfactory to
the Trustee, evidencing such revival and reinstatement.
[
Signature page follows.
]
50
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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CELANESE US HOLDINGS LLC
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By:
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Name:
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Title:
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CELANESE CORPORATION
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By:
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Name:
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Title:
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WELLS FARGO BANK, NATIONAL
ASSOCIATION
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By:
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Name:
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Title:
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EXHIBIT 4.7
Celanese US Holdings LLC
as Issuer
AND
Celanese Corporation
as Parent Guarantor
INDENTURE
Dated as of [__________], 2011
Wells Fargo Bank, National Association
as Trustee
Subordinated Debt Securities
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.1.
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Definitions
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1
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Section 1.2.
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Other Definitions
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5
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Section 1.3.
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Rules of Construction
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5
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ARTICLE II. THE SECURITIES
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6
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Section 2.1.
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Issuable in Series
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6
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Section 2.2.
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Establishment of Terms of Series of Securities
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6
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Section 2.3.
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Execution and Authentication
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9
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Section 2.4.
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Registrar, Paying Agent and Transfer Agent
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10
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Section 2.5.
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Paying Agent to Hold Money in Trust
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11
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Section 2.6.
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Securityholder Lists
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11
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Section 2.7.
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Transfer and Exchange
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11
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Section 2.8.
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Mutilated, Destroyed, Lost and Stolen Securities
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12
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Section 2.9.
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Outstanding Securities
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12
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Section 2.10.
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Treasury Securities
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13
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Section 2.11.
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Temporary Securities
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13
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Section 2.12.
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Cancellation
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13
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Section 2.13.
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Global Securities
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14
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Section 2.14.
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CUSIP Numbers
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15
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Section 2.15.
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Form of Parent Guarantee
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16
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ARTICLE III. REDEMPTION
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16
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Section 3.1.
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Notice to Trustee; No Liability for Calculations
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16
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Section 3.2.
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Selection of Securities to be Redeemed
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17
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Section 3.3.
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Notice of Redemption
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17
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Section 3.4.
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Effect of Notice of Redemption
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18
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Section 3.5.
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Deposit of Redemption Price
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18
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Section 3.6.
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Securities Redeemed in Part
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18
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Section 3.7.
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Sinking Fund
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19
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Section 3.8.
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Satisfaction of Sinking Fund Payments with Securities
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19
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Section 3.9.
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Redemption of Securities for Sinking Fund
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19
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ARTICLE IV. COVENANTS
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20
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Section 4.1.
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Payment of Principal, Premium and Interest
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20
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Section 4.2.
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Compliance Certificate
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20
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Section 4.3.
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Stay, Extension and Usury Laws
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20
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Section 4.4.
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Corporate Existence
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21
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Section 4.5.
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Reports
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21
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ARTICLE V. SUCCESSORS
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21
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Section 5.1.
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Consolidation, Merger and Sale of Assets
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21
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ARTICLE VI. DEFAULTS AND REMEDIES
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22
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Section 6.1.
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Events of Default
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22
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Section 6.2.
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Acceleration of Maturity; Rescission and Annulment
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23
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Section 6.3.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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24
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Section 6.4.
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Trustee May File Proofs of Claim
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24
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i
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Section 6.5.
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Trustee May Enforce Claims Without Possession of Securities
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25
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Section 6.6.
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Application of Money Collected
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25
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Section 6.7.
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Limitation on Suits
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26
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Section 6.8.
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Unconditional Right of Holders to Receive Principal and Interest
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26
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Section 6.9.
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Restoration of Rights and Remedies
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26
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Section 6.10.
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Rights and Remedies Cumulative
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27
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Section 6.11.
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Delay or Omission Not Waiver
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27
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Section 6.12.
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Control by Holders
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27
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Section 6.13.
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Waiver of Past Defaults
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28
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Section 6.14.
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Undertaking for Costs
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28
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ARTICLE VII. TRUSTEE
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28
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Section 7.1.
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Duties of Trustee
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28
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Section 7.2.
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Rights of Trustee
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29
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Section 7.3.
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May Hold Securities
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31
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Section 7.4.
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Trustees Disclaimer
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31
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Section 7.5.
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Notice of Defaults
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31
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Section 7.6.
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Compensation and Indemnity
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31
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Section 7.7.
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Replacement of Trustee
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32
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Section 7.8.
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Successor Trustee by Merger, etc.
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34
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Section 7.9.
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Eligibility; Disqualification
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34
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Section 7.10.
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Preferential Collection of Claims Against Issuer
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34
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ARTICLE VIII. DISCHARGE OF INDENTURE
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35
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Section 8.1.
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Termination of Issuers Obligations
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35
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Section 8.2.
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Application of Trust Money
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38
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Section 8.3.
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Repayment to Issuer or Parent Guarantor
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38
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Section 8.4.
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Reinstatement
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39
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ARTICLE IX. AMENDMENTS AND WAIVERS
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39
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Section 9.1.
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Without Consent of Holders
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39
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Section 9.2.
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With Consent of Holders
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40
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Section 9.3.
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Limitations
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41
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Section 9.4.
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Form of Amendments
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42
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Section 9.5.
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Revocation and Effect of Consents
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42
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Section 9.6.
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Notation on or Exchange of Securities
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42
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Section 9.7.
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Trustee Protected
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42
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ARTICLE X. MISCELLANEOUS
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42
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Section 10.1.
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Notices
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42
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Section 10.2.
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Communication by Holders with Other Holders
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44
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Section 10.3.
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Certificate and Opinion as to Conditions Precedent
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44
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Section 10.4.
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Statements Required in Certificate or Opinion
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44
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Section 10.5.
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Rules by Trustee and Agents
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45
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Section 10.6.
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Legal Holidays
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45
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Section 10.7.
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No Personal Liability of Directors, Officers, Employees and Certain Others
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45
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Section 10.8.
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Counterparts
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45
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Section 10.9.
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Governing Laws
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46
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Section 10.10.
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No Adverse Interpretation of Other Agreements
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46
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ii
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Section 10.11.
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Successors
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46
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Section 10.12.
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Severability
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46
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Section 10.13.
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Table of Contents, Headings, Etc.
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46
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Section 10.14.
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Judgment Currency
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46
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Section 10.15.
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English Language
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47
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Section 10.16.
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Submission to Jurisdiction; Appointment of Agent
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47
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Section 10.17.
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Waiver of Immunity
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48
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Section 10.18.
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Waiver of Jury Trial
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48
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ARTICLE XI. GUARANTEES
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48
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Section 11.01
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Parent Guarantee
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48
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Section 11.02
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Execution and Delivery of Parent Guarantee
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49
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Section 11.03
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Release of Parent Guarantee
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50
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ARTICLE XII. SUBORDINATION OF SECURITIES
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50
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Section 12.1.
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Subordination Terms
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50
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iii
Indenture dated as of [__________] between Celanese US Holdings LLC, a Delaware limited
liability company (the
Issuer
), Celanese Corporation, a Delaware corporation (the
Parent
Guarantor
) and Wells Fargo Bank, National Association, as trustee (the
Trustee
).
Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders (as defined below) of the Securities (as defined below) issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.
Definitions.
Affiliate
of any specified Person means any other Person directly or indirectly controlling
or controlled by or under common control with such specified Person. For the purposes of this
definition, control (including, with correlative meanings, the terms controlling, controlled
by and under common control with), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities or by agreement or
otherwise.
Agent
means any Registrar, Paying Agent or Transfer Agent or any other agent appointed
pursuant to this Indenture.
Board of Directors
means the Board of Directors of the Issuer, or any duly authorized
committee thereof.
Board Resolution
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Issuer to have been adopted by the Board of Directors or pursuant to authorization
by the Board of Directors and to be in full force and effect on the date of the certification and
delivered to the Trustee.
Business Day
means, unless otherwise provided by Board Resolution, Officers Certificate or
supplemental indenture for a particular Series, any day except a Saturday, Sunday or a Legal
Holiday in The City of New York on which banking institutions are authorized or required by law,
regulation or executive order to close.
Capital Stock
means (1) in the case of a corporation, corporate stock; (2) in the case of an
association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited
liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing Person, but excluding from
all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
Certificated Securities
means definitive Securities in registered non-global certificated
form.
Company Order
or
Company Request
means a written order signed in the name of the Issuer by
one of the Officers of the Issuer or the Parent Guarantor, as the case may be.
Corporate Trust Office
means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which, as of the date hereof is the
address set forth in Section 10.1.
Default
means any event which is, or after notice or passage of time or both would be, an
Event of Default.
Depositary
means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated as Depositary for
such Series by the Issuer which Depositary shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such Person,
Depositary
as used with respect to
the Securities of any Series shall mean the Depositary with respect to the Securities of such
Series.
Discount Security
means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
Dollars
or
$
means the currency of The United States of America.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
GAAP
means accounting principles generally accepted in the United States of America set
forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as have been approved
by a significant segment of the accounting profession, which are in effect from time to time.
Global Security
or
Global Securities
means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depositary for such Series or its nominee, and registered in the name of such
Depositary or nominee.
Government Obligations
means securities which are (i) direct obligations of The United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of The United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by The United States of America, and which in the case of (i) and (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such Government
2
Obligation or a specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided
that (except
as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the custodian with respect to
the Government Obligation evidenced by such depository receipt.
Holder
or
Securityholder
means a Person in whose name a Security is registered in the
register maintained by the Registrar.
Indenture
means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Securities established as contemplated
hereunder.
Issue Date
means, with respect to any Security, the date of original issuance of such
Security.
Maturity
, when used with respect to any Security, means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
Officer
means the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
Chief Accounting Officer, President, any Vice-President, the Treasurer, a Director, the Chairman,
the Secretary, any Assistant Treasurer or any Assistant Secretary of the Issuer or the Parent
Guarantor, as the case may be.
Officers Certificate
means a certificate signed by an Officer of the Issuer or the Parent
Guarantor, as the case may be.
Opinion of Counsel
means a written opinion of legal counsel who is acceptable to the
Trustee. The counsel may be a direct or indirect employee of or counsel to the Issuer or the
Parent Guarantor, as the case may be.
Parent Guarantee
means the unconditional and unsubordinated guarantee by the Parent
Guarantor of the due and punctual payment of principal of and interest on a series of Securities
when and as the same shall become due and payable, whether at the stated maturity, by acceleration,
call for redemption or otherwise in accordance with the terms of the Securities and this Indenture.
Parent Guarantor
means Celanese Corporation, a Delaware corporation.
Periodic Offering
means an offering of Securities of a Series from time to time, during
which any or all of the specific terms of the Securities, including the rate or rates of interest,
if any, thereon, the maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the issuance of such
Securities in accordance with the terms of the relevant supplemental indenture.
Person
means any individual, corporation, partnership, limited liability company,
association, joint venture, trust, joint stock company or any other entity or
3
organization, including a government or political subdivision or an agency or instrumentality
thereof.
principal
of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.
Responsible Officer
means any officer of the Trustee in its Corporate Trust Office
responsible for the administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with a particular subject.
Restricted Security
, with respect to any Series of Securities, means a Security of such
Series, unless or until it has been (i) effectively registered under the Securities Act and
disposed of in accordance with a registration statement with respect to such Series or (ii)
distributed to the public pursuant to Rule 144 under the Securities Act or any similar provision
then in force.
SEC
means the Securities and Exchange Commission.
Securities
means the debentures, notes or other debt instruments of the Issuer of any Series
authenticated and delivered under this Indenture.
Securities Act
means the Securities Act of 1933, as amended.
Series
or
Series of Securities
means each series of Securities of the Issuer created
pursuant to Sections 2.1 and 2.2 hereof.
Stated Maturity
when used with respect to any Security, means the date specified in such
Security as the fixed date on which the principal of such Security or interest is due and payable.
Subsidiary
means, with respect to any specified Person, (a) any corporation, association or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency and after giving effect to any voting
agreement or stockholders agreement that effectively transfers voting power) to vote in the
election of directors, managers or trustees of the corporation, association or other business
entity which is at the time owned or controlled, directly or indirectly, by that Person or one or more of
the other subsidiaries of that Person (or a combination thereof); and (b) any partnership or
limited liability company of which (x) more than 50% of the capital accounts, distribution rights,
total equity and voting interests or general and limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of the other
subsidiaries of that Person or a combination thereof, whether in the form of membership, general,
special or limited partnership interests or otherwise, and (y) such Person or any subsidiary of
such Person is a controlling general partner or otherwise controls such entity.
Trustee
means the Person named as the
Trustee
in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter
Trustee
shall mean or include each Person who is
4
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 shall mean the Trustee with respect to Securities
of that Series.
Unrestricted Securities
, with respect to any Series of Securities, means a Security (i)
effectively registered under the Securities Act and disposed of in accordance with a registration
statement with respect to such Series or (ii) distributed to the public pursuant to Rule 144 under
the Securities Act or any similar provision then in force.
Section 1.2.
Other Definitions
.
|
|
|
TERM
|
DEFINED IN
|
|
SECTION
|
|
|
|
Acceleration Notice
|
|
6.2
|
Bankruptcy Law
|
|
6.1
|
covenant defeasance
|
|
8.1(b)
|
Custodian
|
|
6.1
|
Event of Default
|
|
6.1
|
Issuer
|
|
Preamble
|
Judgment Currency
|
|
10.14
|
legal defeasance
|
|
8.1(c)
|
Legal Holiday
|
|
10.6
|
New York Banking Day
|
|
10.14
|
Paying Agent
|
|
2.4
|
Process Agent
|
|
10.16
|
Registrar
|
|
2.4
|
Related Proceeding
|
|
10.16
|
Required Currency
|
|
10.14
|
Successor Company
|
|
5.01
|
TIA
|
|
7.10
|
Transfer Agent
|
|
2.4
|
Section 1.3.
Rules of Construction
.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c)
or
is not exclusive and
including
means including without limitation;
(d) words in the singular include the plural, and in the plural include the singular;
and
5
(e) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1.
Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities
of a Series shall be identical except as may be set forth in, or pursuant to a Board Resolution,
Officers Certificate or supplemental indenture establishing the terms of such Series of
Securities.
Section 2.2.
Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such
Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through
2.2.29) by or pursuant to a Board Resolution, Officers Certificate or supplemental indenture:
2.2.1. the title of the Series of Securities (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);
2.2.2. any limit upon the aggregate principal amount of the Securities of the Series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.3. the date or dates on which the principal and premium, if any, of the Securities of the
Series is payable;
2.2.4. the rate or rates, which may be fixed or variable, at which the Securities of the
Series shall bear interest or the manner of calculation of such rate or rates, if any, including
any procedures to vary or reset such rate or rates, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day months;
2.2.5. the place or places where the principal of and interest, if any, on the Securities of
the Series shall be payable, where the Securities of such Series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Issuer with
respect to the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means if other than as set forth in this Indenture;
2.2.6. the date or dates from which interest on the Securities of the Series shall accrue, the
dates on which such interest will be payable or the manner of determination of such dates, and the
record date for the determination of Holders to whom interest is payable on any such dates;
6
2.2.7. any trustees, authenticating agents or paying agents with respect to the Securities of
the Series, if different from those set forth in this Indenture;
2.2.8. the right, if any, to extend the interest payment periods or defer the payment of
interest and the duration of such extension or deferral;
2.2.9. if applicable, the period or periods within which, the price or prices at 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 Issuer if other than as set forth in this Indenture;
2.2.10. the obligation, if any, of the Issuer to redeem, repurchase or repay, if other than as
set forth herein, the Securities of the Series pursuant to any sinking fund or analogous
provisions, including payments made in cash in anticipation of future sinking fund obligations, or
at the option of a Holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the Series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
2.2.11. the forms of the Securities of the Series including the form of the Trustees
certificate of authentication for such Series;
2.2.12. if other than denominations of $1,000 or integral multiples of $1,000 in excess
thereof, the denominations in which the Securities of the Series shall be issuable;
2.2.13. the currency or currencies in which payment of the principal of, premium, if any, and
interest on, the Securities of the Series shall be payable;
2.2.14. if the principal amount payable at the Stated Maturity of Securities of the Series
will not be determinable as of any one or more dates prior to such Stated Maturity, the amount
which will be deemed to be such principal amount as of any such date for any purpose, including the
portion of the principal amount thereof that will be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2 or upon any maturity other than the
Stated Maturity or that will 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;
2.2.15. the terms of any repurchase or remarketing rights;
2.2.16. if the Securities of the Series shall be issued in whole or in part in the form of a
Global Security or Securities, the type of Global Security to be issued; the terms and conditions,
if different from those contained in this Indenture, upon which such Global Security or Securities
may be exchanged in whole or in part for other individual Securities in definitive registered form;
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 2.14.2;
2.2.17. whether the Securities of the Series will be convertible into or exchangeable for
other Securities, common shares or other securities of any kind of the Issuer or another obligor,
and, if so, the terms and conditions upon which such Securities will be so convertible or
exchangeable, including the initial conversion or exchange price or rate or the
7
method of calculation, how and when the conversion price or exchange ratio may be adjusted,
whether conversion or exchange is mandatory, at the option of the holder or at the Issuers option,
the conversion or exchange period, and any other provision in addition to or in lieu of those
described herein;
2.2.18. any additional restrictive covenants or Events of Default that will apply to the
Securities of the Series, or any changes to the restrictive covenants set forth in Article IV or
the Events of Default set forth in Section 6.01 that will apply to the Securities of the Series,
which may consist of establishing different terms or provisions from those set forth in Article IV
or Section 6.01 or eliminating any such restrictive covenant or Event of Default with respect to
the Securities of the Series;
2.2.19. any provisions granting special rights to Holders when a specified event occurs;
2.2.20. if the amount of principal of or any premium or interest on Securities of any Series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts will be determined;
2.2.21. any special tax implications of the Securities, including provisions for original
issue discount securities, if offered;
2.2.22. whether and upon what terms Securities of the Series may be defeased if different from
the provisions set forth in this Indenture;
2.2.23. with regard to the Securities of any Series that do not bear interest, the dates for
certain required reports to the Trustee;
2.2.24. whether the Securities of any Series will be issued as Unrestricted Securities or
Restricted Securities, and, if issued as Restricted Securities, the rule or regulation promulgated
under the Securities Act in reliance on which they will be sold;
2.2.25. any guarantees, supplemental to the Parent Guarantee, on the Securities of the Series,
and the terms and conditions upon which any guarantees, including the Parent Guarantee, may be
released or terminated;
2.2.26. the provisions, if any, relating to any security provided for the Securities of the
Series;
2.2.27. any Depositaries, interest rate calculation agents, exchange rate calculation agents
or other agents with respect to Securities of such Series if other than those appointed herein;
2.2.28. the subordination terms of the Securities of the Series; and
2.2.29. any and all additional, eliminated or changed terms that shall apply to the Securities
of the Series, including any terms that may be required by or advisable under United States laws or
regulations, including the Securities Act and the rules and regulations
8
promulgated thereunder, or advisable in connection with the marketing of Securities of that
Series.
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, Officers Certificate or supplemental indenture referred to above.
Section 2.3.
Execution and Authentication.
An Officer of the Issuer shall sign the Securities for the Issuer, and an Officer of the
Parent Guarantor shall sign the Parent Guarantees for the Parent Guarantor, in each case by manual
or facsimile signature.
If an Officer whose signature is on a Security or Parent Guarantee no longer holds that office
at the time the Security is authenticated, the Security or Parent Guarantee, as the case may be,
shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, Officers Certificate or
supplemental indenture, upon receipt by the Trustee of a Company Order. Each Security shall be
dated the date of its authentication unless otherwise provided by the relevant Board Resolution,
Officers Certificate or supplemental indenture.
Notwithstanding the provisions of Section 2.2 and the preceding paragraph, in the case of
Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with a Company Order or such other procedures acceptable
to the Trustee as may be specified by or pursuant to a supplemental indenture or the written order
of the Issuer delivered to the Trustee prior to the time of the first authentication of Securities
of such Series.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, Officers Certificate or supplemental indenture delivered pursuant to Section 2.2.
Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
Officers Certificate or supplemental indenture establishing the form of the Securities of that
Series or of Securities within that Series and the terms of the Securities of that Series or of
Securities within that Series, (b) an Officers Certificate complying with Section 10.4, and (c) an
Opinion of Counsel complying with Section 10.4. With respect to Securities of a Series subject to
a Periodic Offering, the Trustee conclusively may rely, as to the authorization by the Issuer of
any of such Securities, the forms and terms thereof and the legality, validity, binding effect and
9
enforceability thereof, upon the written order of the Issuer, Opinion of Counsel, Officers
Certificate and other documents delivered pursuant to this Section 2.3 at or prior to the time of
the first authentication of Securities of such Series unless and until such written order, Opinion
of Counsel, Officers Certificate or other documents have been superseded or revoked, and written
notice thereof is provided to Trustee, or expire by their terms.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a committee of Responsible Officers shall determine that such action would expose the
Trustee to personal liability.
The Trustee may appoint an authenticating agent to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.
Section 2.4.
Registrar, Paying Agent and Transfer Agent.
The Issuer will maintain one or more paying agents (each, a
Paying Agent
) for the Securities
in the Borough of Manhattan, City of New York. The initial Paying Agent will be the Trustee and
thereafter
Paying Agent
shall mean or include each Person who is then a Paying Agent hereunder,
and if at any time there is more than one such Person,
Paying Agent
as used with respect to the
Securities of any Series shall mean the Paying Agent with respect to Securities of that Series.
The Issuer, upon written notice to the Trustee accompanied by an Officers Certificate, may appoint
one or more paying agents, other than the Trustee, for all or any Series of Securities. If the
Issuer fails to appoint or maintain another entity as paying agent, the Trustee shall act as such.
The Issuer, the Parent Guarantor or any of their Subsidiaries, upon notice to the Trustee, may act
as paying agent.
The Issuer will maintain one or more registrars (each, a
Registrar
) for the Securities in
the Borough of Manhattan, City of New York. The initial Registrar will be the Trustee and
thereafter
Registrar
shall mean or include each Person who is then a Registrar hereunder, and if
at any time there is more than one such Person,
Registrar
as used with respect to the Securities
of any Series shall mean the Registrar with respect to Securities of that Series. The Issuer, upon
written notice to the Trustee accompanied by an Officers Certificate, may appoint one or more
registrars, other than the Trustee, for all or any Series of Securities. If the Issuer fails to
appoint or maintain another entity as registrar, the Trustee shall act as such. The Issuer, the
Parent Guarantor or any of their Subsidiaries, upon notice to the Trustee, may act as registrar.
The Issuer will also maintain a transfer agent (each, a
Transfer Agent
) for the Securities
in the Borough of Manhattan, City of New York. The initial Transfer Agent will be the Trustee and
thereafter
Transfer Agent
shall mean or include each Person who is then a Transfer Agent
hereunder, and if at any time there is more than one such Person,
Transfer Agent
as used with
respect to the Securities of any Series shall mean the Transfer Agent with
10
respect to Securities of that Series. The Issuer, upon written notice to the Trustee
accompanied by an Officers Certificate, may appoint one or more transfer agents, other than the
Trustee, for all or any Series of Securities. If the Issuer fails to appoint or maintain another
entity as transfer agent, the Trustee shall act as such. The Issuer, the Parent Guarantor, or any
Subsidiary of either, upon notice to the Trustee, may act as transfer agent.
The Issuer may change any Paying Agent, Registrar or Transfer Agent for its Securities without
prior notice to the Holders.
Section 2.5.
Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent appointed by it other than the Issuer, the Parent
Guarantor, a Subsidiary of either the Issuer or the Parent Guarantor, or the Trustee to agree in
writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series
of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of
or interest on the Series of Securities, and will notify the Trustee of any default by the Issuer
in making any such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Issuer, the Parent Guarantor or a Subsidiary of either) shall have no
further liability for the money. If the Issuer, the Parent Guarantor or a Subsidiary of either
acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6.
Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders of each Series of Securities.
If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least ten days
before each interest payment date and at such other times as the Trustee may request in writing a
list, in such form and as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders of each Series of Securities.
Section 2.7.
Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if the requirements for such
transactions set forth in this Indenture are met. To permit registrations of transfers and
exchanges, the Trustee shall authenticate Securities at the Registrars request upon the Trustees
receipt of a Company Order from the Issuer. No service charge shall be made for any registration
of transfer or exchange (except as otherwise expressly permitted herein), but the Issuer may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Issuer nor the Registrar shall be required (a) to issue, register the transfer of,
or exchange Securities of any Series for the period beginning at the opening of
11
business fifteen days immediately preceding the delivery of a notice of redemption of
Securities of that Series selected for redemption and ending at the close of business on the day of
such delivery, or (b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed of any such
Securities selected, called or being called for redemption in part.
Section 2.8.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer shall execute a new
Security of the same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, upon which the Parent Guarantor shall execute the Parent Guarantee,
and the Trustee shall authenticate and deliver such new Security in exchange for the Security
surrendered.
If there shall be delivered to the Issuer and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Issuer or the Trustee that such Security has been acquired by a protected
purchaser, the Issuer shall execute, the Parent Guarantor shall execute the Parent Guarantee
thereon and upon receipt of a Company Order, the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series
and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section 2.8, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any Series issued pursuant to this Section 2.8 in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Issuer whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 2.9.
Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in
12
the interest on a Security, if applicable, effected by the Trustee in accordance with the
provisions hereof and those described in this Section 2.9 as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.
If the Paying Agent (other than the Issuer, a Subsidiary of the Issuer or an Affiliate of the
Issuer) holds on the Maturity of Securities of a Series money sufficient to pay such Securities
payable on that date, then on and after that date such Securities of the Series cease to be
outstanding and interest on them ceases to accrue.
The Issuer may purchase or otherwise acquire the Securities, whether by open market purchases,
negotiated transactions or otherwise. A Security does not cease to be outstanding because the
Issuer or an Affiliate of the Issuer holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10.
Treasury Securities.
In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver,
Securities of a Series owned by the Issuer, the Parent Guarantor or any Affiliate of the Issuer or
the Parent Guarantor shall be disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee
knows are so owned shall be so disregarded.
Section 2.11.
Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Issuer
considers appropriate for temporary Securities. Without unreasonable delay, the Issuer shall
prepare and the Trustee upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged, temporary
securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12.
Cancellation.
The Issuer at any time may deliver Securities to the Trustee for cancellation. The Agents
shall forward to the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for transfer,
13
exchange, payment, replacement or cancellation and shall destroy such canceled Securities
(subject to the record retention requirement of the Exchange Act) and deliver a certificate of such
destruction to the Issuer upon written request. The Issuer may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13.
Global Securities.
2.13.1.
Transfer and Exchange
. Notwithstanding any provisions to the contrary
contained in Section 2.7 of this Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of this Indenture for Securities registered in the names of
Holders other than the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Issuer fails to appoint a successor Depositary registered as
a clearing agency under the Exchange Act within 90 days of such event or (ii) the Issuer executes
and delivers to the Trustee an Officers Certificate to the effect that such Global Security shall
be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary shall direct in
writing in an aggregate principal amount equal to the principal amount of the Global Security with
like tenor and terms.
Except as provided in this Section 2.14.1, a Global Security may not be transferred except as
a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by
a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or
inquire as to compliance with any tax or securities laws with respect to any restrictions on
transfer imposed under this Indenture or under applicable law (including any transfers between or
among Depositary participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements hereof.
2.13.2.
Legend
. Any Global Security issued hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR
14
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
2.13.3.
Acts of Holders
. The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under this
Indenture.
2.13.4.
Payments
. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof, which in the case of a Depositary
therefore will be made in accordance with its applicable procedures.
2.13.5.
Holders
. The Issuer, the Trustee and each Agent shall treat the Person in
whose name any Security is registered in the register maintained by the Registrar as the Holder for
all purposes including for purposes of obtaining any consents, declarations, waivers or directions
permitted or required to be given by the Holders pursuant to this Indenture.
2.13.6.
No Obligation of the Trustee
. Neither the Trustee nor any Agent shall have any
responsibility or obligation to any beneficial owner of an interest in a Global Security, a member
of, or a participant in, the Depositary or other Person with respect to the accuracy of the records
of the Depositary or its nominee or of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice (including any notice of
redemption) or the payment of any amount or delivery of any Securities (or other security or
property) under or with respect to such Securities. All notices and communications to be given to
the Holders and all payments to be made to Holders with respect to the Securities shall be given or
made only to or upon the order of the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Security). The rights of beneficial owners in any Global Security
shall be exercised only through the Depositary subject to the applicable rules and procedures of
the Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members, participants and any
beneficial owners.
Section 2.14.
CUSIP Numbers.
The Issuer in issuing the Securities may use CUSIP, ISIN and or Common Code numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP, ISIN and or Common Code
numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other elements of identification printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers.
15
Section 2.15.
Form of Parent Guarantee.
The form of Parent Guarantee shall be set forth on the applicable Series of Securities
substantially as follows:
GUARANTEE
For value received, the Parent Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to the holder of this Security the payment of principal of, premium, if any, and
interest on, the Security upon which this Parent Guarantee is set forth in the amounts and at the
time when due and payable whether by declaration thereof, or otherwise, and interest on the overdue
principal and interest, if any, of such Security, if lawful, to the holder of such Security and the
Trustee on behalf of the Holders, all in accordance with and subject to the terms and limitations
of such Security and Article XI of the Indenture. This Parent Guarantee will not become effective
until the Trustee or authenticating agent duly executes the certificate of authentication on this
Security. This Parent Guarantee shall be governed by and construed in accordance with the laws of
the State of New York, without regard to conflict of law principles thereof.
Dated:
CELANESE CORPORATION
By: _____________________________
Name:
Title:
ARTICLE III.
REDEMPTION
Section 3.1.
Notice to Trustee; No Liability for Calculations.
The Issuer may, with respect to any Series of Securities, reserve the right to redeem and pay
such Series of Securities or may covenant to redeem and pay such Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in
Sections 3.9 and 3.10 hereof or, as applicable, in the Board Resolution, Officers Certificate or
supplemental indenture relating to such Series. If a Series of Securities is redeemable and the
Issuer wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in
writing of the redemption date and the principal amount of Series of Securities to be redeemed at
least 40 days before a redemption date (or such shorter notice as may be acceptable to the
Trustee). The Trustee shall have no liability with respect to or obligation to calculate the
redemption price of any Securities to be redeemed pursuant to this Indenture.
16
Section 3.2.
Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board Resolution, Officers
Certificate or a supplemental indenture, if less than all of the Securities of a Series are to be
redeemed at any time, the Trustee will select the Securities of a Series to be redeemed on a
pro
rata
basis (or, in the case of Securities issued in global form based on a method that most nearly
approximates a
pro rata
selection as the Trustee deems fair and appropriate) unless otherwise
required by law or applicable stock exchange or Depositary requirements. The Trustee will not be
liable for selections made by it as contemplated in this section.
No Securities of a Series in principal amount of $1,000 or less can be redeemed in part.
Notices of purchase or redemption will be given to each Holder pursuant to Section 3.3 and
Section 10.1.
Section 3.3.
Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution, Officers Certificate
or supplemental indenture, at least 30 days but not more than 60 days before a redemption date, the
Issuer will deliver a notice of redemption to each Holder whose Securities are to be redeemed in
accordance with Section 10.1, except that redemption notices may be given more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of the Securities or a
satisfaction and discharge of this Indenture pursuant to Article VIII hereof.
The notice shall identify the Securities to be redeemed and corresponding CUSIP, ISIN or
Common Code numbers, as applicable, and will state:
(a) the redemption date;
(b) the redemption price and the amount of accrued interest, if any, to be paid;
(c) if any Global Security is being redeemed in part, the portion of the principal
amount of such Global Security to be redeemed and that, after the redemption date upon
surrender of such Global Security, the principal amount thereof will be decreased by the
portion thereof redeemed pursuant thereto;
(d) if any Certificated Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed, and that, after the redemption date, upon
surrender of such Security, a new Certificated Security or Certificated Securities in
principal amount equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Certificated Security;
(e) the name and address of the Paying Agent(s) to which the Securities are to be
surrendered for redemption;
17
(f) that Securities called for redemption must be surrendered to the relevant Paying
Agent to collect the redemption price, plus accrued and unpaid interest, if any;
(g) that, unless the Issuer defaults in making such redemption payment, interest on
Securities called for redemption cease to accrue on and after the redemption date;
(h) that Securities of the Series called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(i) the paragraph of the Securities and/or Section of this Indenture pursuant to which
the Securities called for redemption are being redeemed; and
(j) that no representation is made as to the correctness or accuracy of the CUSIP, ISIN
or Common Code numbers, if any, listed in such notice or printed on the Securities.
At the Issuers written request, the Trustee shall give the notice of redemption in the
Issuers name and at its expense;
provided
,
however
, that the Issuer has delivered to the Trustee,
at least 40 days prior to the redemption date (or such shorter period of time as the Trustee may
permit), an Officers Certificate requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in the preceding paragraph.
Section 3.4.
Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. Unless otherwise indicated for a particular Series by Board Resolution, Officers
Certificate or supplemental indenture, a notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued
interest to the redemption date.
On or after any purchase or redemption date, unless the Issuer defaults in payment of the
purchase or redemption price, interest shall cease to accrue on Securities or portions thereof
tendered for purchase or called for redemption.
Section 3.5.
Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on the redemption date, the Issuer shall deposit
with the Paying Agent money in immediately available funds sufficient to pay the redemption price
of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6.
Securities Redeemed in Part.
Upon surrender of a Certificated Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Certificated Security of the same Series and the same maturity
equal in principal amount to the unredeemed portion of the Security surrendered.
18
In relation to Certificated Securities, a new Security in principal amount equal to the
unpurchased or unredeemed portion of any Security purchased or redeemed in part will be issued in
the name of the Holder thereof upon cancellation of the original Certificated Security.
Section 3.7.
Sinking Fund.
Unless otherwise indicated for a particular Series by Board Resolution, Officers Certificate
or supplemental indenture, the provisions of Sections 3.7, 3.8 and 3.9 shall be applicable to any
sinking fund for the retirement of Securities of a Series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
Series is referred to as a mandatory sinking fund payment, and any payment in excess of such
minimum amount provided for by the terms of Securities of any Series is referred to as an optional
sinking fund payment. If provided for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section 3.8. Each sinking
fund payment shall be applied to the redemption of Securities of any Series as provided for by the
terms of Securities of such Series.
Section 3.8.
Satisfaction of Sinking Fund Payments with Securities.
The Issuer (i) may deliver outstanding Securities of a Series other than any Securities
previously called for redemption and (ii) may apply as a credit Securities of a Series that have
been redeemed either at the election of the Issuer pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such Series required to be made pursuant to the terms of such
Securities, 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 for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 3.9.
Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any Series of Securities,
the Issuer 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 the Series, the portion
thereof, if any, that 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 2.2), the portion thereof,
if any, that is to be satisfied by delivering and crediting Securities of that Series pursuant to
Section 3.8 and the basis for such credit. Together with such Officers Certificate, the Issuer
will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Issuer in the manner provided in
Section 3.3.
19
ARTICLE IV.
COVENANTS
Section 4.1.
Payment of Principal, Premium and Interest.
The Issuer covenants and agrees for the benefit of the Holders of each Series of Securities
that it will duly and punctually pay the principal of, premium, if any, and interest, on the
Securities of that Series in accordance with the terms of such Securities and this Indenture.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture for
a particular Series, on or before 10:00 a.m., New York City time, on the applicable payment date,
the Issuer shall deposit with the Paying Agent money sufficient to pay the principal of, premium,
if any, and interest on the Securities of each such Series in accordance with the terms of such
Securities and this Indenture.
Section 4.2.
Compliance Certificate.
The Issuer and the Parent Guarantor shall deliver to the Trustee, within 120 days after the
end of its fiscal year of the Issuer and the Parent Guarantor (which as of the date of this
Indenture is December 31, or if the fiscal year with respect to the Issuer or the Parent Guarantor,
as the case may be, is changed, such other fiscal year end date as the Issuer or the Parent
Guarantor, as the case may be, shall notify to the Trustee in writing), an Officers Certificate
stating that a review of the activities of the Issuer, the Parent Guarantor and the Subsidiaries of
each during the preceding fiscal year has been made under the supervision of the signing Officer
with a view to determining whether the Issuer or the Parent Guarantor, as the case may be, has
kept, observed, performed and fulfilled its obligations under this Indenture, and further stating,
as to each such Officer signing such certificate, that to his/her knowledge the Issuer or the
Parent Guarantor, as the case may be, is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he may have knowledge). Such
Officers Certificate need not include a reference to any non-compliance that has been fully cured
prior to the date as of which such certificate speaks.
The Issuer will, so long as any of the Securities are outstanding, deliver to the Trustee,
within 30 days upon becoming aware of any Default or Event of Default, an Officers Certificate
specifying such Default or Event of Default and what action the Issuer is taking or proposes to
take with respect thereto.
Section 4.3.
Stay, Extension and Usury Laws.
Each of the Issuer and the Parent Guarantor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Indenture or the
Securities; and each of the Issuer and the Parent Guarantor (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of any power herein
20
granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.4.
Corporate Existence.
Subject to Article V, each of the Issuer and the Parent Guarantor will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate existence and
rights (charter and statutory);
provided
,
however
, that neither Issuer nor the Parent Guarantor
shall be required to preserve any such right if its Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of its business and its Subsidiaries
taken as a whole and that the loss thereof is not adverse in any material respect to the Holders of
the Securities.
Section 4.5.
Reports.
(a) So long as any Securities are outstanding, the Issuer shall file with the Trustee,
within 15 days after the Parent Guarantor files with the SEC, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations prescribe) that the
Parent Guarantor may be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act. The Issuer shall be deemed to have complied with the previous
sentence to the extent that such information, documents and reports are filed with the SEC
via EDGAR (or any successor electronic delivery procedure).
(b) Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustees receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information
contained therein, including the Issuers compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE V.
SUCCESSORS
Section 5.1.
Consolidation, Merger and Sale of Assets.
The Issuer may not, directly or indirectly: (x) consolidate or merge with or into or wind up
into another Person (whether or not the Issuer is the surviving Person); or (y) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of its properties or assets, in
one or more related transactions, to another Person; unless:
(a) either: (i) the Issuer is the surviving Person; or (ii) the Person formed by or
surviving any such consolidation or merger (if other than the Issuer) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is a corporation,
limited liability company or limited partnership organized or existing under the laws of the
jurisdiction of organization of the Issuer or the United States, any state of
21
the United States, the District of Columbia or any territory thereof (the Issuer or
such Person, as the case may be, hereinafter referred to as the
Successor
Company
);
(b) the Successor Company (if other than the Issuer) expressly assumes all the
obligations of the Issuer under the Securities and the Indenture;
(c) immediately after such transaction no Default or Event of Default exists;
(d) the Issuer shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
amendment or supplement (if any) comply with the Indenture.
The Successor Company shall succeed to, and be substituted for, the Issuer under this
Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1.
Events of Default.
The following are
Events of Default
with respect to the Securities of any Series, unless in
the establishing Board Resolution, Officers Certificate or supplemental indenture, it is provided
that such Series shall not have the benefit of said Event of Default:
(a) the Issuer defaults in payment when due and payable, upon redemption, acceleration
or otherwise, of principal of, or premium, if any, on the Notes;
(b) the Issuer defaults in the payment when due of interest on or with respect to the
Notes and such default continues for a period of 30 days;
(c) the Issuer defaults in the performance of, or breaches any covenant, warranty or
other agreement contained in this Indenture (other than a default in the performance or
breach of a covenant, warranty or agreement which is specifically dealt with in clauses (a)
or (b) above) and such default or breach continues for a period of 90 days after the notice
specified below;
(d) the Issuer or the Parent Guarantor pursuant to or within the meaning of any
Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an involuntary
case,
(3) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(4) makes a general assignment for the benefit of its creditors, or
22
(5) generally is unable to pay its debts as the same become due; or
(e) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(1) is for relief against the Issuer or the Parent Guarantor in an involuntary
case,
(2) appoints a Custodian of the Issuer or the Parent Guarantor or for all or
substantially all of its property, or
(3) orders the liquidation of the Issuer or the Parent Guarantor,
and the order or decree remains unstayed and in effect for 60 days;
(f) the Parent Guarantee with respect to the Securities of such Series shall for any
reason cease to be, or shall for any reason be asserted in writing by the Parent Guarantor
or the Issuer not to be, in full force and effect and enforceable in accordance with its
terms except to the extent contemplated by this Indenture and such Parent Guarantee; or
(g) any other Event of Default provided in the supplemental indenture or Board
Resolution under which such Series of Securities is issued or in the form of Security for
such Series.
The term
Bankruptcy Law
means title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term
Custodian
means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
A Default under one Series of Securities issued under this Indenture will not necessarily be a
default under another Series of Securities under this Indenture.
Section 6.2.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default for a Series of Securities occurs and is continuing (other than an
Event of Default referred to in Section 6.1(e) or (f)), the Trustee or the Holders of at least 25%
in principal amount of such Series of Securities may declare the unpaid principal of all such
Securities to be due and payable by notice in writing to the Issuer and the Trustee specifying the
respective Event of Default and that it is a notice of acceleration (the Acceleration Notice),
and the same shall become immediately due and payable. If an Event of Default referred to in
Section 6.1(e) or (f) occurs, the principal amount plus accrued and unpaid interest on such Series
of Securities will become immediately due and payable without any action on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article VI provided, the Holders of a majority in principal amount of the
outstanding Securities of that Series, by written notice to the Issuer and the
23
Trustee, may rescind and annul such declaration and its consequences if all Events of Default
with respect to Securities of that Series, other than the non-payment of the principal and
interest, if any, of Securities of that Series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.3.
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Issuer covenants that if
(a) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security at the Maturity
thereof, or
(c) default is made in the deposit of any sinking fund payment when and as due by the
terms of a Security,
then,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and any overdue interest at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer, the Parent Guarantor or any other obligor upon such Securities
and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Issuer, the Parent Guarantor or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 6.4.
Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
24
Issuer, the Parent Guarantor or any other obligor upon the Securities or the property of the
Issuer, the Parent Guarantor or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the
Issuer for the payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and
unpaid with respect to the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.6.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote with respect to the claim of any Holder in any such proceeding.
Section 6.5.
Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
with respect to which such judgment has been recovered.
Section 6.6.
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article VI shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.6;
25
Second: To the payment of all senior indebtedness of the Issuer if and to the extent required
by Article XI;
Third: To the payment of the amounts then due and unpaid for principal of, premium, if any,
and interest on the Securities with respect to which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and interest, respectively; and
Fourth: To the Issuer.
Section 6.7.
Limitation on Suits
.
A Holder of Securities of any Series may pursue any remedy under this Indenture applicable to
such Securities only if:
(a) the Holder gives the Trustee written notice of a continuing Event of Default for
such Series of Securities;
(b) the Holders of at least 25% in principal amount of such outstanding Series of
Securities make a written request to the Trustee to pursue the remedy;
(c) the Holders furnish to the Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in compliance with
such request;
(d) the Trustee fails to act for a period of 60 days after receipt of notice and
furnishing of indemnity; and
(e) during that 60-day period, the Holders of a majority in principal amount of such
Securities do not give the Trustee a direction inconsistent with the request.
This provision does not, however, affect the right of a Holder of Securities to sue for
enforcement of any overdue payment with respect to such Securities.
Section 6.8.
Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and
interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 6.9.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any
26
reason, or has been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 6.10.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not,
to the extent permitted by law, prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.11.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12.
Control by Holders.
The Holders of a majority in principal amount of the outstanding Securities of any Series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(c) the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability or that it will not
be adequately indemnified against the costs, expenses and liabilities which might be
incurred by it in complying with such direction.
27
Section 6.13.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the outstanding Securities of
any Series may on behalf of the Holders of all the Securities of such Series waive an existing
Default or Event of Default hereunder with respect to such Series and its consequences, except a
Default in the payment of the principal of or interest on any Security of such Series (
provided
,
however
, that the Holders of a majority in principal amount of the outstanding Securities of any
Series may rescind an acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.14.
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Issuer
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the outstanding Securities of any
Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal
of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1.
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in such exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to the Securities
of any Series:
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(1)
|
|
the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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28
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(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 such certificates
and opinions to determine whether, on their face, they appear to
conform to the requirements of this Indenture.
|
(c) The Trustee may not be relieved from liabilities for its own grossly negligent
action, its own grossly negligent failure to act or its own willful misconduct, except that:
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(1)
|
|
this paragraph does not limit the effect of
paragraph (b) of this Section 7.1; and
|
|
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(2)
|
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the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was grossly negligent in ascertaining the
pertinent facts.
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(d) Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to the provisions of this Article VII.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability. The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity reasonably satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on or investment of any money received
by it except as the Trustee may agree in writing with the Issuer. Money held in trust by
the Trustee need not be segregated from other funds except to the extent required by law.
All money received by the Trustee shall, until applied as herein provided, be held in trust
for the payment of the principal of and premium (if any) and interest on the Securities.
Section 7.2.
Rights of Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, note, debenture or other paper or
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 any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, security or other paper or document.
(b) Before the Trustee acts or refrains from acting, it may require instruction, an
Officers Certificate or an Opinion of Counsel or both to be provided by the Issuer.
29
The Trustee shall not be liable for any action it takes or omits to take in good faith
in reliance on such instruction, Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection with respect to any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents, attorneys, custodians or nominees and shall not
be responsible for the misconduct or negligence of any agent, attorney, custodian or nominee
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 conferred upon it by
this Indenture or with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it from the Holders of a majority in aggregate
principal amount of the relevant Series of Securities.
(e) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuer shall be sufficient if signed by an Officer of the
Issuer.
(f) Anything in this Indenture to the contrary notwithstanding, in no event shall the
Trustee be liable under or in connection with this Indenture for indirect, special,
incidental, punitive or consequential losses or damages of any kind whatsoever, including
but not limited to lost profits, whether or not foreseeable, even if the Trustee has been
advised of the possibility thereof and regardless of the form of action in which such
damages are sought.
(g) The Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or direction of any of the Holders of
Securities pursuant to the provisions of this Indenture, unless such Holders of Securities
shall have offered to the Trustee, security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred therein or
thereby.
(h) The Trustee shall not be deemed to have notice of any Event of Default with respect
to the Securities unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is received by a
Responsible Officer at the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture.
(i) The Trustee may at any time request, and the Issuer shall deliver an Officers
Certificate setting forth the specimen signatures and the names of individuals and/or titles
of Officers authorized at such time to take specified actions pursuant to this Indenture,
which Officers Certificate may be signed by any Person authorized to sign an Officers
Certificate, including any Person specified as so authorized in any such certificate
previously delivered and not superseded.
30
(j) Notwithstanding any provision herein to the contrary, in no event shall the Trustee
be liable for any failure or delay in the performance of its obligations under this
Indenture because of circumstances beyond its control, including, but not limited to, acts
of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work
stoppages for any reason, embargo, government action, including any laws, ordinances,
regulations or the like which restrict or prohibit the providing of the services
contemplated by this Indenture, inability to obtain material, equipment, or communications
or computer facilities, or the failure of equipment or interruption of communications or
computer facilities, and other causes beyond its control whether or not of the same class or
kind as specifically named above.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, each Agent, and each other agent, custodian and
other Person employed to act hereunder.
Section 7.3.
May Hold Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Issuer or any of its Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights and duties.
However, the Trustee is subject to Sections 7.9 and 7.10.
Section 7.4.
Trustees Disclaimer.
The Trustee makes no representation as to the validity, sufficiency or adequacy of any
offering materials, this Indenture or the Securities, it shall not be accountable for the Issuers
use of the proceeds from the Securities or any money paid to the Issuer or upon the Issuers
direction under any provision hereof, it shall not be responsible for any statement or recital
herein or any statement in any offering materials or the Securities other than its certificate of
authentication.
Section 7.5.
Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any Series occurs and is
continuing and it is actually known to the Trustee, the Trustee shall mail to Holders of Securities
of such Series a notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of and premium (if any) and
interest on any sinking fund installment with respect to the Securities of such Series, the Trustee
may withhold the notice if and so long as a Responsible Officer in good faith determines that
withholding the notice is in the interests of Holders of Securities of such Series to do so.
Section 7.6.
Compensation and Indemnity.
The Issuer agrees to pay to the Trustee for its acceptance of this Indenture and services
hereunder such compensation as the Issuer and the Trustee shall from time to time agree in writing.
The Trustees compensation shall not be limited by any law on compensation of a
31
trustee of an express trust. The Issuer agrees to reimburse the Trustee upon request for all
reasonable disbursements, advances and expenses incurred by it. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustees agents and counsel.
The Issuer and the Parent Guarantor shall indemnify the Trustee from, and hold it harmless
against any damage, cost, claim, loss, liability or expense (including the reasonable fees and
expenses of the Trustees agents and counsel) incurred by it arising out of or in connection with
its acceptance and administration of the trusts set forth under this Indenture, the performance of
its obligations and/or the exercise of its rights hereunder, including the reasonable costs and
expenses of defending itself against any claim, except as set forth in the next following
paragraph. The Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. The Issuer shall defend the claim, with counsel reasonably acceptable to the Trustee,
and the Trustee shall cooperate in the defense, unless, the Trustee, in its reasonable discretion,
determines that any actual or potential conflict of interest may exist, in which case the Trustee
may have separate counsel, reasonably acceptable to the Issuer and the Issuer shall pay the
reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made
without its consent.
The Issuer shall not be obligated to reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustees own gross negligence or bad faith.
To secure the payment obligations of the Issuer in this Section 7.6, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay principal of and premium (if any) and interest on Securities of any Series.
Such lien and the obligations of the Issuer and the Parent Guarantor under this Section 7.6 shall
survive the satisfaction and discharge of this Indenture, the payment of the Securities and/or the
resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services in connection with an Event of Default,
the expenses (including the reasonable charges and expenses of its counsel) and the compensation
for the services are intended to constitute expenses of administration under any applicable Federal
or State bankruptcy, insolvency or other similar law.
Section 7.7.
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.7.
The Trustee may resign and be discharged at any time with respect to the Securities of one or
more Series by so notifying the Issuer. The Holders of a majority in principal amount of the then
outstanding Securities of any Series may remove the Trustee with respect to the Securities of such
Series by so notifying the Trustee and the Issuer. The Issuer may remove the Trustee for any or
all Series of the Securities if:
(a) the Trustee fails to comply with Section 7.9;
32
(b) the Trustee is adjudged as bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more Series, the Issuer shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those Series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such Series). Within one year after the successor Trustee with respect to the
Securities of any Series takes office, the Holders of a majority in principal amount of the
Securities of such Series then outstanding may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuer.
If a successor Trustee with respect to the Securities of any Series does not take office
within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer
or the Holders of at least 10% in principal amount of the then outstanding Securities of such
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such Series.
If the Trustee with respect to the Securities of a Series fails to comply with Section 7.9,
any Holder of Securities of such Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
such Series.
In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and
to the Issuer. 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 retiring
Trustee under this Indenture. The successor Trustee shall give a notice of its succession to
Holders in accordance with Section 10.2. 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 7.6.
In case of the appointment of a successor Trustee with respect to the Securities of one or
more Series, the Issuer, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more Series shall execute and deliver an indenture supplemental hereto in
which each successor Trustee shall accept such appointment and that (1) shall confer to each
successor Trustee all the rights, powers and duties of the retiring Trustee with respect to the
Securities of that or those Series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall confirm that all the
rights, powers and duties of the retiring Trustee with respect to the Securities of that or those
Series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee. Nothing
33
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, and each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee. Upon the
execution and delivery of such supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee shall
have all the rights, powers and duties of the retiring Trustee with respect to the Securities of
that or those Series to which the appointment of such successor Trustee relates. On request of the
Issuer, or any successor Trustee, such retiring Trustee shall transfer to such successor Trustee
all property held by such retiring Trustee as Trustee with respect to the Securities of that or
those Series to which the appointment of such successor Trustee relates. Such retiring Trustee
shall, however, have the right to deduct its unpaid fees and expenses, including attorneys fees.
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.7, the
obligations of the Issuer and the Parent Guarantor under Section 7.6 shall continue for the benefit
of the retiring Trustee or Trustees.
Section 7.8.
Successor Trustee by Merger, etc.
Subject to Section 7.9, if the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business (including this transaction) to, another
corporation, the successor corporation without any further act shall be the successor Trustee.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated; 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 7.9.
Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States, any State thereof or the District of Columbia
and authorized under such laws to exercise corporate trust power, shall be subject to supervision
or examination by Federal or State (or the District of Columbia) authority and shall have, or be a
subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
Section 7.10.
Preferential Collection of Claims Against Issuer.
The Trustee is subject to and shall comply with the provisions of the Trust Indenture Act of
1933, as amended (the
TIA
) § 311(a), as if such section applied hereto, excluding any creditor
relationship listed in TIA § 311(b). A Trustee who has resigned or been
34
removed shall be subject to TIA § 311(a), as if such section applied hereto, to the extent
indicated therein.
ARTICLE VIII.
DISCHARGE OF INDENTURE
Section 8.1.
Termination of Issuers Obligations.
(a) This Indenture shall cease to be of further effect with respect to the Securities of a
Series (except that all obligations of the Issuer and the Parent Guarantor under Section 7.6, the
Trustees and Paying Agents obligations under Section 8.3 and the rights, powers, protections and
privileges accorded the Trustee under Article VII shall survive), and the Trustee, on written
demand of the Issuer shall execute instruments acknowledging the satisfaction and discharge of this
Indenture with respect to the Securities of such Series, when:
(A) all outstanding Securities of such Series theretofore
authenticated and issued (other than destroyed, lost or stolen
Securities that have been replaced or paid) have been delivered
to the Trustee for cancellation; or
(B) all outstanding Securities of such Series not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuer,
and, in the case of clause (i), (ii) or (iii) above, the Issuer or the Parent Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as funds (immediately
available to the Holders in the case of clause (i)) in trust for such purpose (x) cash in an
amount, or (y) Government Obligations, maturing as to principal and interest at such times
and in such amounts as will ensure the availability of cash in an amount or (z) a
combination thereof which will be sufficient, in the opinion (in the case of (y) or (z)) of
a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness
on the Securities of such Series for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or for principal, premium, if any,
and interest to the Stated Maturity or redemption date, as the case may be; or
35
(C) the Issuer or the Parent Guarantor has properly fulfilled
such other means of satisfaction and discharge, as contemplated
by Section 2.2 to be applicable to the Securities of such Series;
(2) the Issuer or the Parent Guarantor has paid or caused to be paid all other
sums payable by it hereunder with respect to the Securities of such Series; and
(3) the Issuer or the Parent Guarantor, as the case may be, has delivered to
the Trustee an Officers Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture with respect to the Securities of such
Series have been complied with, together with an Opinion of Counsel to the same
effect.
(b) Unless this Section 8.1(b) is specified as not being applicable to Securities of a Series
as contemplated by Section 2.2, each of the Issuer and the Parent Guarantor may terminate certain
of its obligations under this Indenture (
covenant defeasance
) with respect to the Securities of a
Series if:
(1) either the Issuer or the Parent Guarantor has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of Securities of such Series, (i)
money, or (ii) Government Obligations with respect to such Series, maturing as to
principal and interest at such times and in such amounts as will ensure the
availability of money in the currency in which payment of the Securities of such
Series is to be made in an amount or (iii) a combination thereof, that is
sufficient, in the opinion (in the case of (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the principal of and premium
(if any) and interest on all Securities of such Series on each date that such
principal, premium (if any) or interest is due and payable and (at the Stated
Maturity thereof or upon redemption as provided in Section 8.1(e)) to pay all other
sums payable by it hereunder; provided that the Trustee shall have been irrevocably
instructed to apply such money and/or the proceeds of such Government Obligations to
the payment of said principal, premium (if any) and interest with respect to the
Securities of such Series as the same shall become due;
(2) the Issuer or the Parent Guarantor, as the case may be, has delivered to
the Trustee an Officers Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture with respect to the Securities of such
Series have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such deposit
36
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit and the grant of any lien securing such borrowings);
(4) the Issuer or the Parent Guarantor, as the case may be, shall have
delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel
acceptable to the Trustee or a tax ruling to the effect that the Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of such
Issuer or Parent Guarantors exercise of its option under this Section 8.1(b) and
will be subject to Federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had not been exercised;
and
(5) the Issuer and the Parent Guarantor have complied with any additional
conditions specified pursuant to Section 2.2 to be applicable to the discharge of
Securities of such Series pursuant to this Section 8.1.
In such event, this Indenture shall cease to be of further effect (except as set forth in this
paragraph), and the Trustee, on written demand of the Issuer or the Parent Guarantor, as the case
may be, shall execute instruments acknowledging satisfaction and discharge under this Indenture.
However, the Issuers obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 4.1, 5.1, 7.6 and 7.7, the
Parent Guarantors obligations in Section 5.1 and 7.6, the Trustees and Paying Agents obligations
in Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under
Article VII shall survive until all Securities of such Series are no longer outstanding.
Thereafter, only the obligations of the Issuer and the Parent Guarantor in Section 7.6 and the
Trustees and Paying Agents obligations in Section 8.3 shall survive with respect to Securities of
such Series.
In order to have money available on a payment date to pay principal of or premium (if any) or
interest on the Securities, the Government Obligations shall be payable as to principal or interest
on or before such payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the Issuers option.
(c) If the Issuer or the Parent Guarantor, as the case may be, has previously complied or is
concurrently complying with the conditions set forth in Section 8.1(b) (other than any additional
conditions specified pursuant to Section 2.2 that are expressly applicable only to covenant
defeasance) with respect to Securities of a Series, then unless this Section 8.1(c) is specified as
not being applicable to Securities of such Series as contemplated by Section 2.2, each of the
Issuer and the Parent Guarantor may elect to be discharged (
legal defeasance
) from its
obligations to make payments with respect to Securities of such Series, if:
(1) unless otherwise specified with respect to Securities of such Series as
contemplated by Section 2.2, the Issuer or the Parent Guarantor, as the case may be,
has delivered to the Trustee an Opinion of Counsel from a nationally recognized
counsel acceptable to the Trustee to the effect referred to in Section 8.1(b)(4)
with respect to such legal defeasance, which opinion is based on (i) a private
ruling of the Internal Revenue Service addressed to the Issuer or the Parent
Guarantor, as the case may be, (ii) a published ruling of the Internal
37
Revenue Service or (iii) a change in the applicable federal income tax law
(including regulations) after the date of this Indenture; the Issuer or the Parent
Guarantor, as the case may be, has complied with any other conditions specified
pursuant to Section 2.2 to be applicable to the legal defeasance of Securities of
such Series pursuant to this Section 8.1(c); and
(2) the Issuer or the Parent Guarantor, as the case may be, has delivered to
the Trustee a Company Request requesting such legal defeasance of the Securities of
such Series and an Officers Certificate stating that all conditions precedent with
respect to such legal defeasance of the Securities of such Series have been complied
with, together with an Opinion of Counsel to the same effect.
In such event, each of the Issuer and the Parent Guarantor will be discharged from its
obligations under this Indenture and the Securities of such Series to pay principal of and premium
(if any) and interest on Securities of such Series, the Issuers obligations under Sections 4.1 and
5.1 and the Parent Guarantors obligations under Section 5.1 shall terminate with respect to such
Securities, and the entire indebtedness of the Issuer evidenced by such Securities shall be deemed
paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or
defeasance of Securities of a Series are specified to be applicable to such Series as contemplated
by Section 2.2, each of the Issuer and the Parent Guarantor may terminate any or all of its
obligations under this Indenture with respect to the Securities of a Series and any or all of its
obligations under the Securities of such Series if it fulfills such other means of satisfaction and
discharge as may be so specified, as contemplated by Section 2.2, to be applicable to the
Securities of such Series.
(e) If Securities of any Series subject to subsections (a), (b), (c) or (d) of this Section
8.1 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the Issuer shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption
in the name, and at the expense, of the Issuer.
Section 8.2.
Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Issuer shall hold in trust money
or Government Obligations deposited with it pursuant to Section 8.1 hereof. It shall apply the
deposited money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and premium (if any) and interest on
the Securities of the Series with respect to which the deposit was made.
Section 8.3.
Repayment to Issuer or Parent Guarantor.
The Trustee and the Paying Agent shall promptly pay to the Issuer or the Parent Guarantor, as
the case may be, upon written request any excess money or Government Obligations (or proceeds
therefrom) held by them at any time upon the written request of the Issuer or the Parent Guarantor,
as the case may be.
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Subject to the requirements of any applicable abandoned property laws, the Trustee and the
Paying Agent shall pay to the Issuer or the Parent Guarantor, as the case may be, upon written
request any money held by them for the payment of principal, premium (if any) or interest that
remains unclaimed for two years after the date upon which such payment shall have become due.
After payment to the Issuer or the Parent Guarantor, as the case may be, Holders entitled to the
money must look to the Issuer for payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of the Trustee and the Paying Agent with
respect to such money shall cease.
Section 8.4.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations
deposited with respect to Securities of any Series in accordance with Section 8.1 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 obligations of the Issuer and
the Parent Guarantor under this Indenture with respect to the Securities of such Series and under
the Securities of such Series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply
all such money or Government Obligations in accordance with Section 8.1;
provided
,
however
, that if
the Issuer or the Parent Guarantor has made any payment of principal of, premium (if any) or
interest on any Securities because of the reinstatement of its obligations, the Issuer or the
Parent Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or Government Obligations held by the Trustee or
the Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1.
Without Consent of Holders.
Without the consent of any Holder of Securities of a Series, the Issuer, the Parent Guarantor
and the Trustee may amend or supplement this Indenture or the Series of Securities in the following
circumstances:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to provide for the assumption of the Issuer or the Parent Guarantors
obligations under this Indenture by a successor upon any merger, consolidation or
transfer of substantially all of the assets of the Issuer or the Parent Guarantor,
as the case may be;
(3) to provide for uncertificated Securities in addition to or in place of
Certificated Securities;
(4) to provide any security for or guarantees, supplemental to the Parent
Guarantee, of its Securities or for the addition of an additional obligor on its
Securities;
39
(5) to comply with any requirement to effect or maintain the qualification of
this Indenture under the Trust Indenture Act of 1939, as amended, if applicable;
(6) to add covenants that would benefit the Holders of its Securities or to
surrender any rights the Issuer or the Parent Guarantor has under this Indenture;
(7) to change or eliminate any of the provisions of this Indenture,
provided
that any such change or elimination shall not become effective with respect to any
outstanding Securities of any Series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
(8) to provide for the issuance of and establish forms and terms and conditions
of a new Series of Securities;
(9) to permit or facilitate the defeasance and discharge of the Securities;
(10) to issue additional Securities of any Series,
provided
that such
additional Securities have the same terms as, and be deemed part of the same Series
as, the applicable Series of Securities to the extent required under this Indenture;
(11) to evidence and provide for the acceptance of and appointment by a
successor trustee with respect to the Securities of one or more Series and to add to
or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trust by more than one trustee;
(12) to add additional Events of Default with respect to Securities; and
(13) to make any change that does not adversely affect any of its outstanding
Securities in any material respect.
Section 9.2.
With Consent of Holders.
This Indenture or the Securities of a Series may be amended or supplemented, and waivers may
be obtained, with the consent of the Holders of at least a majority in aggregate principal amount
of the then outstanding Securities of such Series voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase of, such Securities
of a Series), and any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium on, if any or interest, if any, on, such
Securities of a Series, except a payment Default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Securities of such Series may
be waived with the consent of the Holders of a majority in aggregate principal amount of the then
outstanding Securities of such Series voting as a single class (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for, such Securities of a Series).
40
The Holders of a majority in principal amount of the outstanding Securities of a Series issued
by the Issuer may waive any existing or past Default or Event of Default with respect to those
Securities. Those Holders may not, however, waive any Default or Event of Default in any payment
on any Security.
For the avoidance of doubt, any amendment, supplement or waiver to any Series of Securities
made with the consent of Holders of such Series of Securities, shall be made with respect to that
Series of Securities only, and not any other Series of Securities.
Section 9.3.
Limitations.
Without the consent of each Holder of Securities of a Series affected thereby, an amendment,
supplement or waiver may not (with respect to any Securities of such Series held by a
non-consenting Holder):
(1) reduce the amount of the Securities of such Series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest on the
Securities of such Series;
(3) reduce the principal of the Securities of such Series or change the Stated
Maturity of the Securities of such Series;
(4) reduce any premium payable on the redemption of the Securities of such
Series or change the time at which the Securities of such Series may or must be
redeemed;
(5) make payments on the Security of such Series payable in currency other than
as originally stated in such Security;
(6) modify the subordination provisions of the Security of such Series in a
manner adverse in any material respect to the Holder thereof;
(7) impair the Holders right to institute suit for the enforcement of any
payment on the Security of such Series;
(8) make any change in the percentage of principal amount of the Securities of
such Series necessary to waive compliance with Sections 6.8 and 6.13 of this
Indenture or to make any change in this Section 9.3(9); or
(9) waive a continuing Default or Event of Default regarding any payment on
Securities of such Series.
In the event that consent is obtained from some of the Holders but not from all of the Holders
with respect to any amendments or waivers pursuant to clauses (1) through (9) of this Section 9.3,
new Securities of such Series with such amendments or waivers will be issued
41
to those consenting Holders. Such new Securities shall have separate CUSIP numbers and ISINs
from those Securities of such Series held by non-consenting Holders.
Section 9.4.
Form of Amendments.
Every amendment to this Indenture or the Securities of one or more Series shall be set forth
in a supplemental indenture.
Section 9.5.
Revocation and Effect of Consents.
Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holders Security, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if
the Trustee receives the written notice of revocation before the date of the supplemental indenture
or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (1) through (9) of
Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holders Security.
Section 9.6.
Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Issuer, in exchange for its Securities of that Series,
may issue and the Trustee shall authenticate upon request new Securities of that Series that
reflect the amendment or waiver.
Section 9.7.
Trustee Protected.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any supplemental indentures which affect the Trustees own rights, duties, immunities, or
indemnities under this Indenture, the Securities or otherwise.
ARTICLE X.
MISCELLANEOUS
Section 10.1.
Notices.
Any request, direction, instruction, demand, document, notice or communication by the Issuer,
the Parent Guarantor or the Trustee to the other, or by a Holder to the Issuer, the
42
Parent Guarantor or the Trustee, shall be in English and in writing and delivered in person,
mailed by first-class mail, delivered via facsimile or delivered by overnight courier as follows:
if to the Issuer:
Celanese US Holdings LLC
1601 West LBJ Freeway
Dallas, Texas 75234
Fax: (214) 258-9730
Attention: General Counsel
if to the Parent Guarantor:
Celanese Corporation
1601 West LBJ Freeway
Dallas, Texas 75234
Fax: (214) 258-9730
Attention: General Counsel
in either case, with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Fax: (212) 351-4035
Attention: Andrew L. Fabens
if to the Trustee:
Wells Fargo Bank, N.A.
201 Main Street, Suite 301
MAC: T T5441-030
Fort Worth, TX 76102
Fax: (817) 885-8650
Notices shall be effective upon the recipients actual receipt thereof. Any party by notice
to the other parties may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication to (i) a Securityholder of a Certificated Security shall be mailed
by first-class mail to his address shown on the register kept by the Registrar (ii) a
Securityholder of a Global Security shall be delivered to the Depositary in accordance with its
applicable procedures. Failure to mail a notice or communication to a Securityholder of any Series
or any defect in it shall not affect its sufficiency with respect to other Securityholders of that
or any other Series.
43
If a notice or communication to any Securityholder is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the Securityholder
receives it.
If the Issuer mails a notice or communication to Securityholders, it shall mail a copy to the
Trustee and each Agent at the same time.
With respect to this Indenture, the Trustee shall not have any duty or obligation to verify or
confirm that the Person sending instructions, directions, reports, notices or other communications
or information by electronic transmission is, in fact, a Person authorized to give such
instructions, directions, reports, notices or other communications or information on behalf of the
party purporting to send such electronic transmission; and the Trustee shall not have any liability
for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of
such reliance upon or compliance with such instructions, directions, reports, notices or other
communications or information. Each other party agrees to assume all risks arising out of the use
of electronic methods to submit instructions, directions, reports, notices or other communications
or information to the Trustee, including the risk of the Trustee acting on unauthorized
instructions, notices, reports or other communications or information, and the risk of interception
and misuse by third parties.
Section 10.2.
Communication by Holders with Other Holders.
Securityholders of a Series may communicate pursuant to TIA § 312(b), as if such section
applied hereto, with other Securityholders of such Series with respect to their rights under this
Indenture or the Securities.
Section 10.3.
Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or the Parent Guarantor to the Trustee to take
any action under this Indenture, the Issuer or the Parent Guarantor shall furnish to the Trustee:
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1.
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an Officers Certificate stating that, in
the opinion of the signer, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
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2.
|
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an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been
complied with.
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Section 10.4.
Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
|
1.
|
|
a statement that the Person making such
certificate or opinion has read such covenant or condition;
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44
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2.
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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;
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3.
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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
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4.
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a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied
with.
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Section 10.5.
Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 10.6.
Legal Holidays.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
for a particular Series, a
Legal Holiday
is any day that is not a Business Day. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.7.
No Personal Liability of Directors, Officers, Employees and Certain
Others.
No director, officer, employee, incorporator or similar founder, stockholder or member of the
Issuer or the Parent Guarantor will have any liability for or any obligations of the Issuer or the
Parent Guarantor, as the case may be, under this Indenture, the Securities or the Parent Guarantees
or for any claim based on, with respect to or by reason of, such obligations or their creation.
Each Holder of Securities by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Securities. The waiver may
not be effective to waive liabilities under the federal securities laws.
Section 10.8.
Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Indenture by facsimile or electronic transmission shall be equally as effective
as delivery of an original executed counterpart of this Indenture. Any party delivering an
executed counterpart of this Indenture by facsimile or electronic transmission also shall deliver
an original executed counterpart of this Indenture, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and binding effect of this Indenture.
45
Section 10.9.
Governing Laws.
THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR
RELATING TO THIS INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW
OTHER THAN THE LAW OF THE STATE OF NEW YORK.
Section 10.10.
No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Issuer, the Parent Guarantor or any Subsidiary of the Issuer or the Parent Guarantor. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.11.
Successors.
All agreements of the Issuer and the Parent Guarantor in this Indenture and the Securities
shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 10.12.
Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.13.
Table of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.14.
Judgment Currency.
The Issuer and the Parent Guarantor agree, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due with respect to the principal of or interest or other amount on
the Securities of any Series (the
Required Currency
) into a currency in which a judgment will be
rendered (the
Judgment Currency
), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the recipient could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the recipient could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding
the day on which final unappealable
46
judgment is entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to be payable with
respect to such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable,
and (iii) shall not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing,
New York Banking Day
means any day except a Saturday,
Sunday or a Legal Holiday in The City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.
Section 10.15.
English Language.
This Indenture has been negotiated and executed in the English language. All certificates,
reports, notices and other documents and communications delivered or delivered pursuant to this
Indenture (including any modifications or supplements hereto), shall be in the English language, or
accompanied by a certified English translation thereof. In the case of any document originally
issued in a language other than English, the English language version of any such document shall
for purposes of this Indenture, and absent manifest error, control the meaning of the matters set
out therein.
Section 10.16.
Submission to Jurisdiction; Appointment of Agent.
Any suit, action or proceeding against the Issuer, the Parent Guarantor or any of their
respective properties, assets or revenues with respect to this Indenture, the Securities or the
Parent Guarantees (a
Related Proceeding
) may be brought in any state or Federal court in the
Borough of Manhattan in The City of New York, New York, as the Person bringing such Related
Proceeding may elect in its sole discretion. Each of the Issuer and the Parent Guarantor hereby
consents to the non-exclusive jurisdiction of each such court for the purpose of any Related
Proceeding and has irrevocably waived any objection to the laying of venue of any Related
Proceeding brought in any such court and to the fullest extent it may effectively do so and the
defense of an inconvenient forum to the maintenance of any Related Proceeding or any such suit,
action or proceeding in any such court. Each of the Issuer and the Parent Guarantor hereby agrees
that service of all writs, claims, process and summonses in any Related Proceeding brought against
it in the State of New York may be made upon CT Corporation System, 111 Eighth Avenue, New York,
New York 10011 (and any successor entity) (the
Process Agent
). Each of the Issuer and the Parent
Guarantor irrevocably appointed the Process Agent as its agent and true and lawful attorney in fact
in its name, place and stead to accept such service of any and all such writs, claims, process and
summonses, and hereby agrees that the failure of the Process Agent to give any notice to it of any
such service of process shall not impair or affect the validity of such service or of any judgment
based thereon. Each of the Issuer and the Parent Guarantor hereby agrees to have an office or to
maintain at all times an agent with offices in the United States of America to act as Process
Agent. Nothing in this Indenture shall in any way be deemed to limit the ability to serve any such
writs, process or summonses in any other manner permitted by applicable law.
47
Section 10.17.
Waiver of Immunity.
To the extent that the Issuer or the Parent Guarantor, as the case may be, has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution or execution, on
the ground of sovereignty or otherwise) with respect to itself or its property, each hereby
irrevocably waives, to the fullest extent permitted by applicable law, such immunity with respect
to its obligations under this Indenture, the Securities or the Parent Guarantees.
Section 10.18.
Waiver of Jury Trial.
EACH OF THE ISSUER, THE PARENT GUARANTOR AND THE TRUSTEE HERETO HEREBY IRREVOCABLY WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
ARTICLE XI.
GUARANTEES
Section 11.01
Parent Guarantee.
The Parent Guarantor hereby fully and unconditionally guarantees (i) to each Holder of each
Security that is authenticated and delivered by the Trustee, and (ii) to the Trustee on behalf of
such Holder, the due and punctual payment of the principal of, premium, if any, and interest on
such Security when and as the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption or otherwise, in accordance with the terms of such Security and
of this Indenture. In case of the failure of the Issuer punctually to make any such payment, the
Parent Guarantor hereby agrees to cause such payment to be made punctually when and as the same
shall become due and payable, whether at the stated maturity or by acceleration, call for
redemption or otherwise, and as if such payment were made by the Issuer.
The Parent Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, the validity, regularity or
enforceability of such Security or this Indenture, the absence of any action to enforce the same or
any release, amendment, waiver or indulgence granted to the Issuer or the Parent Guarantor or any
consent to departure from any requirement of any other guarantee of all or any of the Securities or
any other circumstances which might otherwise constitute a legal or equitable discharge or defense
of a surety or guarantor. The Parent Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any of the Holders protect,
secure, perfect or insure any security interest in or other lien on any property subject thereto or
exhaust any right or take any action against the Issuer or any other Person or any collateral,
filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer, protest or notice with respect to such Security or
the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Parent
Guarantee will not be discharged in respect of such Security except by complete performance of the
obligations contained in such Security and in such Parent Guarantee. The
48
Parent Guarantor agrees that if, after the occurrence and during the continuance of an Event
of Default, the Trustee or any of the Holders of the applicable Series of Securities are prevented
by applicable law from exercising their respective rights to accelerate the maturity of such
Securities, to collect interest on such Securities, or to enforce or exercise any other right or
remedy with respect to such Securities, the Parent Guarantor agrees to pay to the Trustee for the
account of such Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the Trustee or any of such
Holders.
The Parent Guarantor shall be subrogated to all rights of the holders of the Securities
against the Issuer in respect of any amounts paid by the Parent Guarantor on account of such
Security pursuant to the provisions of its Parent Guarantee or this Indenture; provided, however,
that the Parent Guarantor shall not be entitled to enforce or to receive any payment arising out
of, or based upon, such right of subrogation until the principal of and interest on all Securities
of such Series issued hereunder shall have been paid in full.
The Parent Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Issuer for liquidation or reorganization, should the Issuer
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any part of the Issuers assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any time payment and
performance of such Securities, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any holder of such Securities, whether as a voidable
preference, fraudulent transfer, or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, such Securities shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Any term or provision of the Parent Guarantee to the contrary notwithstanding, the aggregate
amount of the obligations guaranteed hereunder shall be reduced to the extent necessary to prevent
such Parent Guarantee from violating or becoming voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors
generally.
Section 11.02
Execution and Delivery of Parent Guarantee.
The Parent Guarantee shall include the terms of the Parent Guarantee set forth in Section
11.01 and shall be substantially in the form established pursuant to Section 2.15. The Parent
Guarantor hereby agrees to execute its Parent Guarantee, in a form established pursuant to Section
2.15, on each Security authenticated and delivered by the Trustee.
The Parent Guarantee shall be executed on behalf of the Parent Guarantor by any one of its
chairman of its board of directors, president, vice presidents or other person duly authorized by
the Parent Guarantors board of directors. The signature of any or all of these persons on the
Parent Guarantee may be manual or facsimile.
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A Parent Guarantee bearing the manual or facsimile signature of individuals who were at any
time the proper officers of the Parent Guarantor shall bind the Parent Guarantor, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication
and delivery of any Security or did not hold such offices at the date of such Parent Guarantee.
The delivery of any Security by the Trustee, after the authentication thereof, shall
constitute due delivery of the Parent Guarantee on behalf of the Parent Guarantor and shall bind
the Parent Guarantor notwithstanding the fact that the Parent Guarantee does not bear the signature
of the Parent Guarantor. The Parent Guarantor agrees that its Parent Guarantee set forth in
Section 11.01 and in the form of Parent Guarantee established pursuant to Section 2.15 shall remain
in full force and effect notwithstanding any failure to execute a Parent Guarantee on any such
Security.
Section 11.03
Release of Parent Guarantee.
Notwithstanding anything in this Article XI to the contrary, concurrently with the payment in
full of the principal of, premium, if any, and interest on Securities of a Series, the Parent
Guarantor shall be released from and relieved of its obligations under this Article XI with respect
to the Securities of such Series. Upon the delivery by the Issuer to the Trustee of an Officers
Certificate and an Opinion of Counsel to the effect that the transaction giving rise to the release
of this Parent Guarantee was made by the Issuer in accordance with the provisions of this Indenture
and the Securities, the Trustee shall execute any documents reasonably required in order to
evidence the release of the Parent Guarantor from its obligations under this Parent Guarantee. If
any of the obligations to pay the principal of, premium, if any, and interest on such Securities
and all other obligations of the Issuer are revived and reinstated after the termination of this
Parent Guarantee, then all of the obligations of the Parent Guarantor under this Parent Guarantee
shall be revived and reinstated as if this Parent Guarantee had not been terminated until such time
as the principal of, premium, if any, and interest on such Securities are paid in full, and the
Parent Guarantor shall enter into an amendment to this Parent Guarantee, reasonably satisfactory to
the Trustee, evidencing such revival and reinstatement.
ARTICLE XII.
SUBORDINATION OF SECURITIES
Section 12.1.
Subordination Terms.
The Securities of a Series issued hereunder shall be subordinated in right of payment to the
extent provided in the subordination terms with respect to the Securities of such Series that are
established pursuant to Section 2.2.
[
Signature page follows.
]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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CELANESE US HOLDINGS LLC
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By:
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Name:
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Title:
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CELANESE CORPORATION
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By:
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Name:
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Title:
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WELLS FARGO BANK, NATIONAL
ASSOCIATION
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By:
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Name:
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Title:
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