<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 7, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
ADVANCED LIGHTING TECHNOLOGIES, INC. ADLT TRUST I
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
</TABLE>
<TABLE>
<S> <C> <C> <C>
OHIO 34-1803229 DELAWARE APPLIED FOR
STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR IDENTIFICATION NUMBER) OF INCORPORATION OR IDENTIFICATION NUMBER)
ORGANIZATION) ORGANIZATION)
</TABLE>
32000 AURORA ROAD
SOLON, OHIO 44139
440/519-0500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
WAYNE R. HELLMAN
CHIEF EXECUTIVE OFFICER
ADVANCED LIGHTING TECHNOLOGIES, INC.
32000 AURORA ROAD
SOLON, OHIO 44139
440/519-0500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
JAMES S. HOGG JONATHAN B. MILLER
COWDEN, HUMPHREY & SARLSON CO., LPA BROWN & WOOD LLP
1414 TERMINAL TOWER ONE WORLD TRADE CENTER
CLEVELAND, OHIO 44113 NEW YORK, NEW YORK 10048
216/241-2880 212/839-5300
</TABLE>
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. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE AGGREGATE PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER UNIT PRICE(1)(2) REGISTRATION FEE(3)
<S> <C> <C> <C> <C>
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Debt Securities of Advanced Lighting
Technologies, Inc. (the
"Company")(4)........................
Common Stock, par value $.001 per
share, of the Company(5).............
Preferred Stock, par value $.001 per
share, of the Company(6)............. $300,000,000 (2) $300,000,000 $88,500
Depositary Shares representing
Preferred Stock, of the Company
(7)..................................
Warrants of the Company (8)..........
Preferred Securities of ADLT Trust I
(the "Trust")(9).....................
Guarantee of Preferred Securities of
the Trust(10)........................
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</TABLE>
(Footnotes on following page)
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
(Footnotes from previous page)
(1) In no event will the aggregate maximum initial offering price of all
securities issued pursuant to this Registration Statement exceed
$300,000,000. Any securities registered hereunder may be sold separately,
together or as units with other securities registered hereunder.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D of Form S-3 and (b) will be determined, from time to
time, by the applicable Registrant in connection with the issuance by such
Registrant of the securities registered hereunder.
(3) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
(4) Subject to footnote 1, there is being registered hereunder an indeterminate
principal amount of Debt Securities as may be sold, from time to time, by
the Company. Such amount shall be increased, if any Debt Securities are
issued at an original issue discount, by an amount such that the net
proceeds to be received by the Company shall be equal to the above amount
to be registered. Also, in addition to any Debt Securities that may be
issued directly under this Registration Statement, there is being
registered hereunder such indeterminate amount of Debt Securities as may be
issued upon conversion or exchange of other Debt Securities, Preferred
Stock or Depositary Shares of the Company, for which no consideration will
be received by the Company, and such aggregate principal amount of Debt
Securities as may be issued and sold to the Trust in connection with the
issuance by the Trust of Preferred Securities. Any Debt Securities sold to
the Trust as aforesaid may be distributed, under certain circumstances, to
the holders of Preferred Securities for no additional consideration.
(5) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of Common Stock as may be sold, from time to time, by the
Company. There also is being registered hereunder an indeterminate number
of shares of Common Stock as may be issuable upon conversion of the Debt
Securities or the Preferred Stock or upon exercise of Warrants registered
hereby. The aggregate amount of Common Stock registered hereunder is
limited, solely for purposes of any at the market offerings, to that which
is permissible under Rule 415(a)(4) of the Securities Act of 1933, as
amended.
(6) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of Preferred Stock as may be sold, from time to time, by
the Company. There also is being registered hereunder an indeterminate
number of shares of Preferred Stock as shall be issuable upon exercise of
Warrants registered hereby. In addition, there is being registered
hereunder such indeterminate amount of Debt Securities, for which no
consideration will be received by the Company, as may be issued upon
conversion or exchange of Preferred Stock.
(7) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts, representing a fractional interest of a share of
Preferred Stock. In addition, there is being registered hereunder such
indeterminate amount of Debt Securities, for which no consideration will be
received by the Company, as may be issued upon conversion or exchange of
Depositary Receipts.
(8) Subject to footnote 1, there is being registered hereunder an indeterminate
number of Warrants representing rights to purchase Debt Securities, shares
of Common Stock or Preferred Stock of the Company registered hereby.
(9) Subject to footnote 1, there is being registered hereunder an indeterminate
number of Preferred Securities as may be sold by the Trust.
(10) No separate consideration will be received for the Guarantee of the
Preferred Securities of the Trust.
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JULY 7, 1998
PROSPECTUS
- -----------
ADVANCED LIGHTING TECHNOLOGIES, INC.
ADLT TRUST I
By this Prospectus, we may offer up to $300,000,000 of our:
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
PREFERRED SECURITIES OF ADLT TRUST I
Advanced Lighting Technologies, Inc. ("We," or the "Company") is an Ohio
corporation. ADLT Trust I is a statutory Delaware business trust (the "Trust").
The Company is the sponsor of the Trust (the "Sponsor").
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY
STATE SECURITIES COMMISSION. NONE OF THOSE AUTHORITIES HAS DETERMINED THAT THIS
PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
We will provide the specific terms of these securities in supplements to
this Prospectus. You should read this Prospectus and the supplements carefully
before you invest.
We may offer the securities directly or through underwriters, agents or
dealers. The supplement will describe the terms of that plan of distribution.
"Plan of Distribution" below also provides more information on this topic.
The date of this Prospectus is , 1998.
<PAGE> 4
Certain persons participating in this offering may engage in transactions
that stabilize, maintain or otherwise affect the price of the securities covered
by this Prospectus. Those transactions include over-allotment, stabilizing
transactions, short covering transactions and penalty bids. For a description of
those activities, see "Plan of Distribution" in this Prospectus. If begun, they
may discontinue those activities at any time.
WHERE YOU CAN FIND MORE INFORMATION
Advanced Lighting Technologies, Inc. files annual, quarterly and current
reports, proxy and information statements and other information with the SEC.
You may read and copy any document we file at the SEC's public reference rooms
in Washington, D.C., New York, New York and Chicago, Illinois. Please call the
SEC at 1-800-SEC-0330 for more information on the public reference rooms and
their copy charges. Our SEC filings are also available to the public from the
SEC's web site at http://www.sec.gov. You may also inspect our SEC reports and
other information at the National Association of Securities Dealers, Inc.,
Reports Section, 1735 K Street N.W., Washington, D.C. 20006
The SEC allows us to "incorporate by reference" the information we file
with them, which means we can disclose information to you by referring you to
those documents. Information incorporated by reference is part of this
Prospectus. Later information filed with the SEC updates and supersedes this
Prospectus.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until this offering is completed, or subsequent
to the date of the initial Registration Statement and prior to effectiveness of
the Registration Statement:
- Annual Report on Form 10-K of the Company for the year ended June 30,
1997.
- Portions of the Proxy Statement on Schedule 14A for the Company's Annual
Meeting of Shareholders held on November 12, 1997 that have been
incorporated by reference into our 10-K.
- Quarterly Reports on Form 10-Q of the Company for the quarters ended
September 30 and December 31, 1997 and March 31, 1998.
- Current Reports on Form 8-K of the Company dated January 14, March 4, May
5 and July 7, 1998.
- The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed November 13, 1995, including any
amendments or reports filed for the purpose of updating such description.
You may request a copy of those filings, other than exhibits, at no cost,
by contacting us at:
Advanced Lighting Technologies, Inc.
32000 Aurora Road
Solon, Ohio 44139
440/519-0500
Attention: Corporate Secretary
2
<PAGE> 5
THE COMPANY
Advanced Lighting Technologies, Inc. is an innovation-driven designer,
manufacturer and marketer of metal halide lighting products. Metal halide
lighting combines energy efficient superior illumination with long lamp (i.e.,
light bulb) life, excellent color rendition and compact lamp and system size. We
believe that we are the only designer and manufacturer in the world focused
primarily on metal halide lighting. As a result of this unique focus, we have
developed substantial expertise in all aspects of metal halide lighting. We
believe that this focus enhances our ability to respond to customer demand and
has contributed to our technologically advanced product development and
manufacturing capabilities.
We have integrated vertically to design, manufacture and market a broad
range of metal halide products, including: materials used in the production of
lamps; lamps and other components for lighting systems; and complete metal
halide lighting systems (i.e., the complete assemblies necessary to create light
when connected to electricity). We also manufacture and market equipment used to
produce metal halide lamps and optical coatings. Our materials and components
are used in the manufacture of our own lighting systems for sale to end-users
and are sold to third party manufacturers for use in the production of their
metal halide products. The vertical integration of our product approach is
illustrated below:
METAL HALIDE INTEGRATION FROM MATERIALS THROUGH SYSTEMS
<TABLE>
<S> <C> <C> <C>
|----------------|-----(arrowhead) ----------------
| MATERIALS | | Internally |------------------------------------
| LAMPS | | Developed | |
| POWER SUPPLIES | | Metal Halide |----------- |
| CONTROLS | | Systems | | (arrowhead)
|OPTICS/COATINGS | -------------- | |------------------|
| EQUIPMENT |--------------------------------------------|-----(arrowhead) | Emerging |
| | Replacement Sales (arrowhead) | Applications |
---------------- ------------------------(arrowhead) |----------------| | -Fiber Optics |
| ------------------------ | Commercial/ | | -Residential |
| | Metal Halide Systems | | Industrial/ | | -Projection TV |
|-----(arrowhead) | Produced by | | Outdoor | ------------------
| Third Parties | | Applications | (arrowhead)
---------------------- ---------------- |
| | (arrowhead) |
| | | |
| |----------------------- |
|------------------------------------------------------
</TABLE>
We produce over 300 ultra pure metal halide salts and believe that we
produce 100% of the metal halide salts used in the manufacture of metal halide
lamps in the United States and over 80% of salts used worldwide. Metal halide
salts are the primary ingredient within the arc tube of metal halide lamps and
determine the lighting characteristics of the lamp. We currently market over 240
specialty and 40 standard-type metal halide lamps, giving us the most diverse
product line of any metal halide lamp manufacturer. In addition, we offer
components such as more than 400 power supply products for metal halide and
other discharge lamp systems. We also assemble and market complete metal halide
systems, which may be installed by an end user to produce light. We also design,
manufacture and market turnkey lamp production equipment groups, which we
typically sell to international manufacturers. We produce optical thin film
coatings for a variety of applications as well as measurement and test
instruments for applying thin film coatings.
METAL HALIDE
Invented approximately 35 years ago, metal halide is the newest of all
major lighting technologies and can produce the closest simulation to sunlight
of any available lighting technology. Metal halide lighting is currently used
primarily in commercial and industrial applications such as factories and
warehouses, outdoor site and landscape lighting, sports facilities and large
retail spaces such as superstores. In addition, due to metal halide's superior
lighting characteristics and efficiency, we believe many opportunities exist to
"metal halidize" applications currently dominated by older incandescent and
fluorescent lighting technologies. Metal halide lamps provide excellent color
rendition, long life (10,000 to 20,000 hours) and very high efficiency (70 to
110 lumens per watt) making them the best choice for many applications. For
example, a 100 watt metal halide lamp, which is approximately the same size as a
household incandescent lamp, produces as much light as five 100 watt
incandescent lamps and as much as three 34 watt, four foot long fluorescent
lamps. However, metal halide lamps cannot be used in the incandescent and
fluorescent lighting fixtures which are very common in existing facilities.
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While metal halide systems generally offer lower costs over the life of a
system, the installation of a metal halide lighting system typically involves
higher initial costs than incandescent and fluorescent lighting systems.
We believe that the majority of the growth of metal halide lighting has
occurred in commercial and industrial applications. Recently, metal halide
systems have been introduced in fiber optic, projection television and
automotive headlamp applications. We believe that additional opportunities for
metal halide lighting exist in other applications where energy efficiency and
light quality are important. As a result of our dominant position in metal
halide materials and lamp production equipment, we expect to benefit from
continued growth in metal halide markets. In addition, we expect to be a leader
in metal halide's continued market expansion by providing innovative metal
halide system components and integrated systems.
Our principal place of business is located at 32000 Aurora Road, Solon,
Ohio 44139 and our telephone number is 440/519-0500.
THE TRUST
We formed ADLT Trust I as a statutory business trust under Delaware law.
The Trust is governed by
- a trust agreement (as the same may be amended, supplemented or restated
from time to time, the "Declaration") executed by the Company, as sponsor
for the trust, and certain of the ADLT Trustees (as defined herein) for
the trust and
- a certificate of trust filed with the Delaware Secretary of State on
June 1, 1998.
We formed the Trust so that it may engage exclusively in the following
activities:
- issuing the Trust Preferred Securities and common securities representing
undivided beneficial interests in the assets of the Trust (the "Trust
Common Securities" and, together with the Trust Preferred Securities, the
"Trust Securities");
- investing the gross proceeds of the Trust Securities in a specific series
of subordinated Debt Securities issued by us; and
- engaging in only those other activities necessary or incidental to these
purposes.
We will own all of the Trust Common Securities. The Trust Common Securities
will rank equally ("pari passu"), and payments will be made on Trust Common
Securities pro rata, with the Trust Preferred Securities, except that upon an
event of default under the Declaration, our rights as holder of the Trust Common
Securities to payment of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. Prior to making an offering of Trust Preferred Securities,
we will, directly or indirectly, acquire Trust Common Securities in an aggregate
liquidation amount equal to approximately 3% of the total capital of the Trust.
The Trust's business and affairs will be conducted by the trustees (the "ADLT
Trustees") who will be appointed by us. Except in certain limited circumstances,
we will be entitled to appoint, remove or replace any of the ADLT Trustees. We
will be able to change the number of ADLT Trustees. The Declaration sets out the
duties and obligations of the ADLT Trustees. A majority of the ADLT Trustees
(the "Regular Trustees") will be persons who we employ or who are our officers
or affiliates. One ADLT Trustee will be a financial institution which will be
unaffiliated with us and which shall act as property trustee and as indenture
trustee (the "Property Trustee") for purposes of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). In addition, unless the Property
Trustee maintains a principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law, one ADLT Trustee will have
its principal place of business or reside in the State of Delaware (the
"Delaware Trustee").
We will pay all fees and expenses related to the Trust and the offering of
Trust Securities. The payment of distributions with respect to the Trust
Preferred Securities from time to time out of money legally available to the
Trust, and payment on liquidation, redemption or otherwise with respect to the
Trust Preferred Securities, will be guaranteed by us to the extent described
herein. See "Description of Trust Preferred Securities -- Trust Preferred
Securities Guarantee." Our obligations under the Trust Preferred Securities
Guarantee will be subordinate and
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junior in right of payment to all of our other liabilities and will rank equally
("pari passu") in right of payment with the most senior preferred stock, if any,
that we may issue from time to time.
The principal place of business of the Trust will be c/o Advanced Lighting
Technologies, Inc., 32000 Aurora Road, Solon, Ohio 44139 (telephone
440/519-0500).
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
NINE
MONTHS
ENDED
MARCH 31, YEAR ENDED JUNE 30,
----------- --------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)................ -- 6.3x 5.1x 2.1x 1.7x 1.5x --
Ratio of earnings to fixed charges and preferred
stock dividends(1)................................. -- 6.3x 5.1x 2.1x 1.7x 1.5x --
</TABLE>
- ---------------
(1) For purposes of calculating the unaudited ratio of earnings to fixed charges
and preferred stock dividends, earnings consist of income (loss) from
continuing operations before income taxes and fixed charges. Fixed charges
consist of interest charges and amortization of debt issuance costs, whether
expensed or capitalized, and that portion of rental expense that is
representative of interest. For the nine months ended March 31, 1998,
earnings were inadequate to cover fixed charge requirements by $21,894,000.
For fiscal 1993, earnings were inadequate to cover fixed charge requirements
by $6,346,000.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and any supplements, including information incorporated by
reference, discuss future expectations, contain projections of our future
operating results or financial condition or state other forward-looking
information relating to, among other things, (i) our potential acquisitions or
joint ventures; (ii) our financing plans; (iii) trends affecting our financial
condition or operating results; (iv) continued growth of the metal halide
lighting market; (v) our operating and growth strategies; and (vi) lawsuits and
claims that may affect us. Known and unknown risks, uncertainties and other
factors could cause the actual results to differ materially from those
contemplated by those statements. The forward-looking information is based on
various factors and was derived using numerous assumptions.
Important factors that may cause actual results to differ include among
other things the results of our efforts to implement our business strategy, the
effect of general economic conditions, actions of our competitors and our
ability to respond to those actions, the cost of our capital, which may depend
in part on our portfolio quality, debt ratings, prospects and outlook, changes
in governmental regulation, tax rates and similar matters, the results of
lawsuits, the ability to attract and retain quality employees and other risks
detailed in our other filings with the SEC. We do not promise to update
forward-looking information to reflect actual results or changes in assumptions
or other factors that could affect those statements.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for
general corporate purposes. Those purposes include the repayment or refinancing
of debt, acquisitions in the ordinary course of business, working capital,
investment in operations and capital expenditures. We will describe in the
supplement any proposed use of proceeds other than for general corporate
purposes.
DESCRIPTION OF DEBT SECURITIES
The Company may issue Debt Securities either separately, or together with,
or upon the conversion of or in exchange for, other Securities. The Debt
Securities are to be either senior unsecured obligations (the "Senior Debt
Securities") or subordinated unsecured obligations of the Company (the
"Subordinated Debt Securities")
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<PAGE> 8
issued in one or more series under an Indenture (as supplemented from time to
time, the "Indenture") to be entered into between the Company and one or more
U.S. banking institutions (each, a "Trustee") whose name will be set forth in
the applicable Prospectus Supplement. The Indenture may, but need not, have
separate Trustees for Senior and Subordinated Debt Securities. The form of the
Indenture has been filed as an exhibit to the Registration Statement. The terms
of any series of Debt Securities will be those set forth in the Indenture and
such Debt Securities and those made part of the Indenture by the Trust Indenture
Act. The summary of certain provisions of the Indenture and the Debt Securities
set forth below and the summary of certain terms of a particular series of Debt
Securities set forth in the applicable Prospectus Supplement do not purport to
be complete and are subject to and are qualified in their entirety by reference
to all of the provisions of the Indenture, which provisions of the Indenture
(including defined terms) are incorporated herein by reference. Certain
capitalized terms used herein and not defined are defined in the Indenture. As
used in this "Description of Debt Securities," all references to the "Company"
shall mean Advanced Lighting Technologies, Inc., excluding, unless the context
shall otherwise require, its subsidiaries.
In the event that Subordinated Debt Securities are issued to the Trust or a
trustee of the Trust in connection with the issuance of Trust Securities, such
Subordinated Debt Securities will be issued pursuant to the Indenture and
subsequently may be distributed pro rata to the holders of such Trust Securities
in connection with the dissolution of the Trust upon the occurrence of certain
events described in the Prospectus Supplement relating to such Trust Securities
or upon a redemption of Trust Securities. Only one series of Subordinated Debt
Securities will be issued to the Trust or a trustee of the Trust in connection
with the issuance of Trust Securities by the Trust.
The following description of Debt Securities sets forth certain general
terms and provisions of the series of Debt Securities to which any Prospectus
Supplement may relate. Certain other specific terms of any particular series of
Debt Securities will be described in the applicable Prospectus Supplement. To
the extent that any particular terms of the Debt Securities described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
In addition, this Prospectus relates to up to $50,000,000 aggregate
principal amount of the Company's 8% Senior Notes Due 2008 (the "8% Notes")
which may be issued by the Company and is in addition to $100,000,000 aggregate
principal amount of 8% Notes outstanding as of the date hereof. The 8% Notes are
issuable under an indenture dated as of March 18, 1998 between the Company and
The Bank of New York. See "8% Senior Notes Due 2008" below.
GENERAL TERMS OF THE DEBT SECURITIES WHICH WILL BE DESCRIBED IN THE APPLICABLE
PROSPECTUS SUPPLEMENT
The Debt Securities may be issued from time to time in one or more series
of Senior Debt Securities and/or one or more series of Subordinated Debt
Securities. The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities of
any series may be issued thereunder up to an aggregate principal amount which
may be authorized from time to time by the Company. Reference is made to the
applicable Prospectus Supplement relating to the series of Debt Securities
offered thereby for specific terms, including (where applicable):
(1) the title or designation of such Debt Securities;
(2) any limit on the aggregate principal amount of such Debt Securities;
(3) the price or prices (expressed as a percentage of the principal amount
thereof) at which such Debt Securities will be issued;
(4) the date or dates on which the principal of and premium, if any, on
such Debt Securities will be payable, or the method or methods, if
any, by which such date or dates will be determined;
(5) the rate or rates at which such Debt Securities will bear interest, if
any, or the method or methods, if any, by which such rate or rates are
to be determined, the date or dates, if any, from which such interest
will accrue, or the method or methods, if any, by which such date or
dates are to be determined, and whether and under what circumstances
Additional Amounts on such Debt Securities will be payable,
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and the basis upon which interest will be calculated if other than
that of a 360-day year of twelve 30-day months;
(6) the dates on which such interest, if any, will be payable and the
record dates, if any, therefor;
(7) the place or places where the principal of, premium, if any, and
interest, if any, or any Additional Amounts on such Debt Securities
will be payable and the place or places where such Debt Securities may
be surrendered for registration of transfer and exchange, if in
addition to or other than The City of New York;
(8) if applicable, the date or dates on which, the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Debt Securities may be redeemed at the
option of the Company or are subject to repurchase at the option of
the holders;
(9) the terms of any sinking fund or analogous provision;
(10) any addition to, or modification or deletion of, any covenant or Event
of Default with respect to such Debt Securities;
(11) whether any such Debt Securities are to be issuable in registered or
bearer form or both and, if in bearer form, the terms and conditions
relating thereto and any limitations on issuance of such Bearer
Securities (including in exchange for Registered Securities of the
same series);
(12) whether any such Debt Securities will be issued in temporary or
permanent global form and, if so, the identity of the depositary for
such global Debt Security;
(13) whether and under what circumstances the Company will pay Additional
Amounts (as contemplated by the Indenture) on such Debt Securities to
any holder who is a United States Alien (as defined in the Indenture,
as such definition may be modified) in respect of any tax, assessment
or other governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities rather than pay such
Additional Amounts;
(14) the person to whom any interest on any Registered Securities of the
series shall be payable, if other than the person in whose name the
Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the person to whom, any
interest on any Bearer Security of the series shall be payable, if
other than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Debt
Security will be paid if other than in the manner provided in the
Indenture;
(15) the portion of the principal amount of such Debt Securities which
shall be payable upon acceleration thereof if other than the full
principal amount thereof;
(16) the authorized denominations in which such Debt Securities will be
issuable, if other than denominations of $1,000 and any integral
multiple thereof (in the case of Registered Securities) or $5,000 (in
the case of Bearer Securities);
(17) the terms, if any, upon which such Debt Securities may be convertible
into or exchangeable for other Securities;
(18) whether such Debt Securities will be Senior Debt Securities or
Subordinated Debt Securities, and the terms of subordination, if
applicable;
(19) whether the amount of payments of principal of, and premium, if any,
and interest, if any, on, such Debt Securities may be determined with
reference to an index, formula or other method or methods (any such
Debt Securities being hereinafter called "Indexed Securities") and the
manner in which such amounts will be determined; and
(20) any other terms of such Debt Securities.
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As used in this Prospectus and any Prospectus Supplement relating to the
offering of any Debt Securities, references to the principal of and premium, if
any, and interest, if any, on such Debt Securities will be deemed to include
mention of the payment of Additional Amounts, if any, required by the terms of
such Debt Securities in such context.
Debt Securities may be issued as Original Issue Discount Securities (as
defined in the Indenture) to be sold at a substantial discount below their
principal amount. In the event of an acceleration of the maturity of any
Original Issue Discount Security, the amount payable to the holder thereof upon
such acceleration will be determined in the manner described in the applicable
Prospectus Supplement. Material federal income tax and other considerations
applicable to Original Issue Discount Securities will be described in the
applicable Prospectus Supplement.
Under the Indenture, the terms of the Debt Securities of any series may
differ and the Company, without the consent of the holders of the Debt
Securities of any series, may reopen a previous series of Debt Securities and
issue additional Debt Securities of such series or establish additional terms of
such series.
REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be issued in registered form only, without
coupons. The Indenture, however, provides that the Company may also issue Debt
Securities in bearer form only, or in both registered and bearer form. Bearer
Securities shall not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to any United States person (as
defined below) other than offices located outside the United States of certain
United States financial institutions. As used herein, "United States person"
means any citizen or resident of the United States, any corporation, partnership
or other entity created or organized in or under the laws of the United States,
any estate the income of which is subject to United States federal income
taxation regardless of its source, or any trust whose administration is subject
to the primary supervision of a United States court and which has one or more
United States fiduciaries who have the authority to control all substantial
decisions of the trust, and "United States" means, except as may be set forth in
the Prospectus Supplement, the United States of America (including the states
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction. Purchasers of Bearer Securities will be
subject to certification procedures and may be affected by certain limitations
under United States tax laws. Such procedures and limitations will be described
in the Prospectus Supplement relating to the offering of the Bearer Securities.
Unless otherwise indicated in the applicable Prospectus Supplement,
Registered Securities will be issued in denominations of $1,000 or any integral
multiple thereof, and Bearer Securities will be issued in denominations of
$5,000.
Unless otherwise indicated in the applicable Prospectus Supplement, the
principal, premium, if any, and interest, if any, of or on the Debt Securities
will be payable, and Debt Securities may be surrendered for registration of
transfer or exchange, at an office or agency to be maintained by the Company in
the Borough of Manhattan, The City of New York, provided that payments of
interest with respect to any Registered Security may be made at the option of
the Company by check mailed to the address of the person entitled thereto or by
transfer to an account maintained by the payee with a bank located in the United
States. No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge and any other expenses
that may be imposed in connection therewith.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on Bearer Securities
will be made, subject to any applicable laws and regulations, at such office or
agency outside the United States as specified in the Prospectus Supplement and
as the Company may designate from time to time. Unless otherwise indicated in
the applicable Prospectus Supplement, payment of interest due on Bearer
Securities on any Interest Payment Date will be made only against surrender of
the coupon relating to such Interest Payment Date.
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Unless otherwise indicated in the applicable Prospectus Supplement, no
payment of principal, premium or interest with respect to any Bearer Security
will be made at any office or agency in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that if amounts owing with
respect to any Bearer Securities shall be payable in U.S. dollars, payment with
respect to any such Bearer Securities may be made at the Corporate Trust Office
of the Trustee or at any office or agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the full
amount of such principal, premium or interest at all offices outside of the
United States maintained for such purpose by the Company is illegal or
effectively precluded by exchange controls or similar restrictions.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company will not be required to (i) issue, register the transfer of or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before any selection of Debt Securities of that series of like
tenor to be redeemed and ending at the close of business on the day of that
selection; (ii) register the transfer of or exchange any Registered Security, or
portion thereof, called for redemption, except the unredeemed portion of any
Registered Security being redeemed in part; (iii) exchange any Bearer Security
called for redemption, except to exchange such Bearer Security for a Registered
Security of that series and like tenor that is simultaneously surrendered for
redemption; or (iv) issue, register the transfer of or exchange any Debt
Security which has been surrendered for repayment at the option of the holder,
except the portion, if any, of such Debt Security not to be so repaid.
RANKING OF DEBT SECURITIES AND HOLDING COMPANY STRUCTURE
The Senior Debt Securities will be unsecured unsubordinated obligations of
the Company and will rank on a parity in right of payment with all other
unsecured and unsubordinated indebtedness of the Company, including the 8%
Notes. At March 31, 1998, the Company had approximately $119.8 million of total
indebtedness outstanding.
Although the Senior Debt Securities and the 8% Notes will rank equally
("pari passu") in right of payment with indebtedness outstanding under the
Company's $85.0 million revolving credit facility entered into on January 2,
1998 (as amended, the "Credit Facility"), such indebtedness is secured by
substantially all of the personal property of the Company and each of its North
American subsidiaries and a pledge of stock of each of the Company's principal
subsidiaries. The Senior Debt Securities and the 8% Notes are unsecured and
therefore do not have the benefit of such collateral. If an event of default
occurs under the Credit Facility, the banks party thereto will have preferential
claims to those assets and may foreclose upon such collateral to the exclusion
of the holders of the Senior Debt Securities and the 8% Notes, notwithstanding
the existence of an event of default with respect to the Senior Debt Securities
and the 8% Notes, respectively. Accordingly, in such an event, the Company's
assets would first be used to repay in full amounts outstanding under the Credit
Facility, resulting in virtually all of the Company's assets being unavailable
to satisfy the claims of holders of the Senior Debt Securities and the 8% Notes
until the indebtedness under the Credit Facility is repaid in full. Any
remaining unpaid claims of creditors under the Credit Facility will rank equally
("pari passu") with the Senior Debt Securities and the 8% Notes and entitled to
share in any of the Company's remaining assets.
The Company conducts substantially all of its operations through
subsidiaries and substantially all of its assets consist of the capital stock of
its subsidiaries. Accordingly, the Senior Debt Securities and the 8% Notes will
be effectively subordinated to liabilities of the Company's subsidiaries,
including trade payables. At March 31, 1998, the total liabilities of the
Company's subsidiaries, excluding intercompany debt but including trade
payables, were approximately $40.8 million. At March 31, 1998, the Company and
its subsidiaries would also have had $77.7 million available (subject to
financial ratio compliance and other limitations) to be drawn under the Credit
Facility, which is secured as described above.
The Company's rights and the rights of its creditors, including holders of
the Senior Debt Securities and the 8% Notes, to participate in the assets of any
subsidiary upon such subsidiary's liquidation or recapitalization will be
subject, in the case of any subsidiary, to the prior claims of such subsidiary's
creditors, except to the extent that the Company itself may be a creditor with
recognized claims against the subsidiary, in which case the claims of the
Company would still be effectively subordinated to any mortgage or other liens
on the assets of such
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subsidiary and would be subordinate to any indebtedness of such subsidiary
senior to that held by the Company. Accordingly, there can be no assurance that,
after providing for all prior claims and all equal ("pari passu") claims, there
would be sufficient assets available to satisfy the obligations of the Company
under the Senior Debt Securities and the 8% Notes.
Because the Company conducts substantially all of its operations through
its subsidiaries, the Company is and will be dependent upon the distribution of
the earnings of its subsidiaries to service its debt obligations, including the
Senior Debt Securities and the 8% Notes. The Company's subsidiaries are separate
and distinct legal entities and have no obligation, contingent or otherwise, to
pay any amounts due on the Senior Debt Securities and the 8% Notes or to make
any funds available therefor.
The Subordinated Debt Securities will be unsecured obligations of the
Company and will be subordinated in right of payment to all existing and future
Senior Indebtedness (as defined in the applicable Prospectus Supplement) of the
Company. See "--Subordination of Subordinated Debt Securities" immediately
following this paragraph.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The applicable Prospectus Supplement will set forth the extent to which
Subordinated Debt Securities of or within a particular series are subordinated
to other indebtedness.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depositary (the "Depositary") identified in the Prospectus Supplement
relating to such series. Global Debt Securities may be issued in either
registered or bearer form and in either temporary or permanent form. Unless and
until it is exchanged in whole or in part for individual certificates evidencing
Debt Securities in definitive form represented thereby, a global Debt Security
may not be transferred except as a whole by the Depositary for such global Debt
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee of such
successor.
The specific terms of the depositary arrangement with respect to a series
of global Debt Securities and certain limitations and restrictions relating to a
series of global Bearer Securities will be described in the Prospectus
Supplement relating to such series.
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture, (i) the portion of the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon a declaration of
acceleration thereof pursuant to the terms of such Original Issue Discount
Security as of the date of such determination, (ii) the principal amount of any
Indexed Security that shall be deemed to be outstanding for such purpose shall
be the principal face amount of such Indexed Security determined on the date of
its original issuance and (iii) any Debt Security owned by the Company or any
obligor on such Debt Security or any Affiliate of the Company or such other
obligor shall be deemed not to be outstanding.
REDEMPTION AND REPURCHASE
The Debt Securities of any series may be redeemable at the option of the
Company, may be subject to mandatory redemption pursuant to a sinking fund or
otherwise, or may be subject to repurchase by the Company at the option of the
holders, in each case upon the terms, at the times and at the prices set forth
in the applicable Prospectus Supplement.
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CONVERSION AND EXCHANGE
The terms, if any, on which Debt Securities of any series are convertible
into or exchangeable for Common Stock, Preferred Stock, Depositary Shares or
other Debt Securities will be set forth in the applicable Prospectus Supplement.
Such terms may include provisions for conversion or exchange, either mandatory,
at the option of the holders or at the option of the Company.
COVENANTS OF THE COMPANY
Reference is made to the applicable Prospectus Supplement for information
with respect to covenants specific to a particular series of Debt Securities. If
any such covenants are described, the Prospectus Supplement will also state
whether the "covenant defeasance" provisions described below also apply.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, an
Event of Default with respect to the Debt Securities of any series is defined in
the Indenture as being: (i) default for 30 days in payment of any interest with
respect to any Debt Security of such series; (ii) default in payment of
principal or any premium with respect to any Debt Security of such series when
due upon maturity, redemption or otherwise; (iii) default in making any sinking
fund payment or payment under any analogous provision when due with respect to
any Debt Security of such series; (iv) default by the Company in the
performance, or breach, of any other covenant or warranty in the Indenture
(other than a covenant or warranty included therein solely for the benefit of
one or more series of Debt Securities other than that series) or any Debt
Security of such series which shall not have been remedied for a period of 90
days after notice to the Company by the Trustee or the holders of not less than
25% in aggregate principal amount of the Debt Securities of such series then
outstanding; (v) acceleration of the maturity of any single outstanding issue of
Indebtedness of the Company with an outstanding aggregate principal amount in
excess of $10,000,000 (including an acceleration under the Indenture with
respect to Debt Securities of any other series), as a result of an event of
default thereunder, which acceleration is not annulled or which Indebtedness is
not discharged within 30 days thereafter; (vi) the Company shall fail within 30
days to pay, bond or otherwise discharge any uninsured judgement or court order
for the payment of money in excess of $10,000,000, which is not stayed on appeal
or is not otherwise being appropriately contested in good faith; (vii) certain
events of bankruptcy, insolvency or reorganization of the Company; or (viii) any
other Event of Default established for the Debt Securities of such series. No
Event of Default with respect to any particular series of Debt Securities
necessarily constitutes an Event of Default with respect to any other series of
Debt Securities. The Indenture provides that the Trustee thereunder may withhold
notice to the holders of the Debt Securities of any series of the occurrence of
a default with respect to the Debt Securities of such series (except a default
in payment of principal, premium, if any, interest, if any, or sinking fund
payments, if any) if the Trustee considers it in the interest of the holders to
do so.
The Indenture provides that if an Event of Default with respect to any
series of Debt Securities issued thereunder shall have occurred and be
continuing, either the Trustee or the holders of at least 25% in principal
amount of the Debt Securities of such series then outstanding may declare the
principal amount (or if any Debt Securities of such series are Original Issue
Discount Securities, such lesser amount as may be specified in the terms
thereof) of all the Debt Securities of such series to be due and payable
immediately, but upon certain conditions such declaration and its consequences
may be rescinded and annulled by the holders of a majority in principal amount
of the Debt Securities of such series then outstanding.
Subject to the provisions of Trust Indenture Act requiring the Trustee,
during an Event of Default under the Indenture, to act with the requisite
standard of care, a Trustee is under no obligation to exercise any of its rights
or powers under the Indenture at the request or direction of any of the holders
of Debt Securities of any series unless such holders have offered the Trustee
reasonable indemnity. Subject to the foregoing, holders of a majority in
principal amount of the then outstanding Debt Securities of any series issued
under the Indenture shall have the right, subject to certain limitations, to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee under the Indenture with respect to such series. The
Indenture requires the annual
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filing by the Company with the Trustee of a certificate as to whether or not the
Company is in default under the terms of the Indenture.
Notwithstanding any other provision of the Indenture, the holder of any
Debt Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and interest, if any,
on such Debt Security on the respective due dates therefor (as the same may be
extended in accordance with the terms of such Debt Security) and to institute
suit for enforcement of any such payment, and such right shall not be impaired
without the consent of such holder. In addition, in the case of a Subordinated
Debt Security issued to the Trust or a Trustee of the Trust, if an Event of
Default has occurred and is continuing and such Event of Default is attributable
to the failure by the Company to pay the principal of or premium, if any, or
interest, if any, on such Subordinated Debt Security, then a holder of Trust
Preferred Securities may directly institute a proceeding against the Company for
payment.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Upon the direction of the Company, the Indenture shall cease to be of
further effect with respect to any series of Debt Securities issued thereunder
specified by the Company (subject to the survival of certain provisions thereof,
including the obligation to pay Additional Amounts to the extent described
below) when (i) either (A) all outstanding Debt Securities of such series and,
in the case of Bearer Securities, all coupons appertaining thereto, have been
delivered to the Trustee for cancelation (subject to certain exceptions) or (B)
all Debt Securities of such series and, if applicable, any coupons appertaining
thereto, have become due and payable or will become due and payable at their
stated maturity within one year or are to be called for redemption within one
year and the Company has deposited with the Trustee, in trust, funds in U.S.
dollars in an amount sufficient to pay the entire indebtedness on such Debt
Securities in respect of principal (and premium, if any) and interest to the
date of such deposit (if such Debt Securities have become due and payable) or to
the Maturity thereof, as the case may be, (ii) the Company has paid all other
sums payable under the Indenture with respect to the Debt Securities of such
series, and (iii) certain other conditions are met. If the Debt Securities of
any such series provide for the payment of Additional Amounts, the Company will
remain obligated, following such deposit, to pay Additional Amounts on such Debt
Securities to the extent that the amount thereof exceeds the amount deposited in
respect of such Additional Amounts as aforesaid.
If provided in the applicable Prospectus Supplement, the Company may elect
with respect to any series of Debt Securities either to defease and be
discharged from (a) any and all obligations with respect to such Debt Securities
(except for, among other things, the obligation to pay Additional Amounts, if
any, upon the occurrence of certain events of taxation, assessment or
governmental charge with respect to payments on such Debt Securities to the
extent that the amount thereof exceeds the amount deposited in respect of such
Additional Amounts as provided below, and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities, to hold moneys for payment in trust, and, if
applicable, to exchange or convert such Debt Securities into other securities in
accordance with their terms) ("defeasance"), or (b) certain restrictive
covenants, if any, in the Indenture and, if indicated in the applicable
Prospectus Supplement, its obligations with respect to any other covenant
applicable to the Debt Securities of such series, and any omission to comply
with such obligations shall not constitute a default or an Event of Default with
respect to the Debt Securities of such series ("covenant defeasance"), in either
case upon the irrevocable deposit with the Trustee (or other qualifying
trustee), in trust for such purpose, of an amount, in U.S. dollars at Stated
Maturity, and/or Government Obligations (as defined in the Indenture) which
through the payment of principal and interest in accordance with their terms
will provide money, in an amount sufficient to pay the principal of and any
premium and any interest on (and, to the extent that (x) the Debt Securities of
such series provide for the payment of Additional Amounts and (y) the amount of
any such Additional Amounts is at the time of deposit reasonably determinable by
the Company (in the exercise of its sole discretion), any such Additional
Amounts with respect to) such Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor or the
applicable redemption date, as the case may be.
Such a trust may only be established if, among other things, (i) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the Indenture or any other
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material agreement or instrument to which the Company is a party or by which it
is bound, (ii) no Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Debt Securities to
be defeased shall have occurred and be continuing on the date of establishment
of such a trust and, with respect to defeasance only, at any time during the
period ending on the 123rd day after such date and (iii) the Company has
delivered to the Trustee an Opinion of Counsel (as specified in the Indenture)
to the effect that the holders of such Debt Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, and such
Opinion of Counsel, in the case of defeasance, must refer to and be based upon a
letter ruling of the Internal Revenue Service received by the Issuer, a Revenue
Ruling published by the Internal Revenue Service or a change in applicable U.S.
federal income tax law occurring after the date of the Indenture.
In the event the Company effects covenant defeasance with respect to any
Debt Securities, and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default or with respect to any other covenant
as to which there has been covenant defeasance, the amount of monies and/or
Government Obligations deposited with the Trustee to effect such covenant
defeasance may not be sufficient to pay amounts due on such Debt Securities at
the time of any acceleration resulting from such Event of Default. However, the
Company would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting or restricting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series.
MODIFICATION, WAIVERS AND MEETINGS
The Indenture contains provisions permitting the Company and the Trustee
thereunder, with the consent of the holders of a majority in principal amount of
the outstanding Debt Securities of each series issued under the Indenture and
affected by a modification or amendment, to modify or amend any of the
provisions of the Indenture or of the Debt Securities of such series or the
rights of the holders of the Debt Securities of such series under the Indenture,
provided that no such modification or amendment shall, among other things, (i)
change the stated maturity of the principal of, or premium, if any, or any
installment of interest, if any, on any Debt Securities issued under the
Indenture or reduce the principal amount thereof or any redemption premium
thereon, or reduce the rate of interest thereon, or reduce the amount of
principal of any Original Issue Discount Securities that would be due and
payable upon an acceleration of the maturity thereof, or adversely affect any
right of repayment at the option of any holder, or change any place where, or
the Currency in which, any Debt Securities issued under the Indenture are
payable, or impair the holder's right to institute suit to enforce the payment
of any such Debt Securities on or after the stated maturity thereof, or make any
change that materially adversely affects the right, if any, to convert or
exchange such Debt Securities for other securities in accordance with their
terms, or (ii) reduce the aforesaid percentage of Debt Securities of any series
issued under the Indenture, the consent of the holders of which is required for
any such modification or amendment or the consent of whose holders is required
for any waiver (of compliance with certain provisions of the Indenture or
certain defaults thereunder and their consequences) or reduce the requirements
for a quorum or voting at a meeting of holders of such Debt Securities or (iii)
solely in the case of any Subordinated Debt Securities, modify any of the
provisions relating to subordination of such Subordinated Debt Securities or the
definition of Senior Indebtedness in a manner adverse to the holders of the
Subordinated Debt Securities, without in each such case obtaining the consent of
the holder of each outstanding Debt Security issued under the Indenture so
affected.
If the Trust or the Property Trustee holds a series of Subordinated Debt
Securities, no such amendment, modification or waiver which requires approval of
holders of a certain percentage in principal amount of the outstanding
Subordinated Debt Securities of such series shall be effective as to such series
of Subordinated Debt Securities, without the approval of the holders of at least
the same percentage of aggregate liquidation amount of outstanding Trust
Securities.
The Indenture also contains provisions permitting the Company and the
Trustee, without the consent of the holders of any Debt Securities issued
thereunder, to modify or amend the Indenture in order to, among other things,
(a) add to the Events of Default or the covenants of the Company for the benefit
of the holders of all or
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any series of Debt Securities issued under the Indenture; (b) to add or change
any provisions of the Indenture to facilitate the issuance of Bearer Securities;
(c) to establish the form or terms of Debt Securities of any series and any
related coupons; (d) to cure any ambiguity or correct or supplement any
provision therein which may be inconsistent with other provisions therein, or to
make any other provisions with respect to matters or questions arising under the
Indenture which shall not materially and adversely affect the interests of the
holders of any series of Debt Securities issued thereunder in any material
respect; (e) to amend or supplement any provision contained in the Indenture,
provided that such amendment or supplement does not apply to any outstanding
Debt Securities issued prior to the date of such amendment or supplement and
entitled to the benefits of such provision; or (f) to amend or supplement any
provision therein or in any supplemental indenture, provided that no such
amendment or supplement shall materially and adversely affect the interests of
the holders of any Debt Securities then outstanding.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of any series may waive compliance by the Company with certain
restrictive provisions of the Indenture to the extent described in the
Prospectus Supplement. The holders of a majority in aggregate principal amount
of the outstanding Debt Securities of any series may, on behalf of all holders
of Debt Securities of that series, waive any past default under the Indenture
with respect to Debt Securities of that series and its consequences, except a
default in the payment of the principal of, or premium, if any, or interest, if
any, on any Debt Securities of such series or in respect of a covenant or
provision which cannot be modified or amended without the consent of the holder
of each outstanding Debt Securities of such series affected.
The Indenture contains provisions for convening meetings of the holders of
Debt Securities of a series issued thereunder. A meeting may be called at any
time by the Trustee, and also, upon request, by the Company or the holders of at
least 10% in principal amount of the outstanding Debt Securities of such series,
in any such case upon notice given in accordance with the provisions of the
Indenture. Except for any consent which must be given by the holder of each
outstanding Debt Security affected thereby, as described above, any resolution
presented at a meeting or adjourned meeting duly reconvened at which a quorum
(as described below) is present may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding Debt Securities of
that series; provided, however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action which
may be made, given or taken by the holders of a specified percentage, which is
less than a majority, in principal amount of the outstanding Debt Securities of
a series may be adopted at a meeting or adjourned meeting duly reconvened at
which a quorum is present by the affirmative vote of the holders of such
specified percentage in principal amount of the outstanding Debt Securities of
that series. Any resolution passed or decision taken at any meeting of holders
of Debt Securities of any series duly held in accordance with the Indenture will
be binding on all holders of Debt Securities of that series and the related
coupons. The quorum at any meeting called to adopt a resolution, and at any
reconvened meeting, will be persons holding or representing a majority in
principal amount of the outstanding Debt Securities of a series, subject to
certain exceptions.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Trust Indenture Act contains limitations on the rights of a trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize on certain property received by it in respect of any
such claims, as security or otherwise. The Trustee is permitted to engage in
other transactions with the Company and its subsidiaries from time to time,
provided that if the Trustee acquires any conflicting interest it must eliminate
such conflict upon the occurrence of an Event of Default under the Indenture, or
else resign.
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8% SENIOR NOTES DUE 2008
The Company may issue up to an additional $50,000,000 aggregate principal
amount of its 8% Senior Notes Due 2008 at the date hereof. The additional 8%
Notes are issuable under an indenture dated as of March 18, 1998 (the "8% Notes
Indenture") between the Company and The Bank of New York. The 8% Notes Indenture
has been incorporated by reference as an exhibit to the Registration Statement.
The additional 8% Notes, if issued, will be unsecured senior indebtedness
and will rank equally ("pari passu") with existing and future unsubordinated
unsecured indebtedness, including the Senior Debt Securities and outstanding 8%
Notes, and senior in right of payment to all subordinated indebtedness of the
Company. The 8% Notes will be effectively subordinated to all secured
indebtedness of the Company and its subsidiaries with respect to the collateral
securing such indebtedness, and the 8% Notes will be effectively subordinated to
all liabilities of the Company's subsidiaries, including trade payables. See
"Ranking of Debt Securities and Holding Company Structure" above.
The 8% Notes Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Restricted Subsidiaries (as defined in
the 8% Notes Indenture) to incur indebtedness, pay dividends, prepay
subordinated indebtedness, repurchase capital stock, make investments, create
liens, engage in transactions with stockholders and affiliates, sell assets and,
with respect to the Company, engage in mergers and consolidations. However,
these limitations are subject to a number of important qualifications and
exceptions as set forth in the 8% Notes Indenture.
A complete description of the material terms of the 8% Notes will be set
forth in the applicable Prospectus Supplement, if any, relating to an offering
of the 8% Notes.
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED CAPITAL STOCK AND AMOUNT OUTSTANDING
The Company's authorized capital stock consists of 80.0 million shares of
Common Stock having a par value of $.001 per share and 1.0 million shares of
Preferred Stock having a par value of $.001 per share. As of May 6, 1998,
20,121,153 shares of Common Stock and no shares of Preferred Stock were issued
and outstanding.
COMMON STOCK
Reference is made to the applicable Prospectus Supplement relating to
Common Stock offered thereby for the terms relevant thereto, including the
number of shares offered and the initial public offering price.
Each holder of Common Stock is entitled to one vote for each share held.
Shareholders do not have the right to cumulate their votes in elections of
directors. Accordingly, holders of a majority of the issued and outstanding
Common Stock will have the right to elect the Company's directors and otherwise
control the affairs of the Company.
Holders of Common Stock are entitled to dividends on a pro rata basis upon
declaration of dividends by the Board of Directors. Dividends are payable only
out of unreserved and unrestricted surplus that is legally available for the
payment of dividends. The Board of Directors is not required to declare
dividends, and it currently expects to retain any funds generated from
operations to finance the development of the Company's business. The payment of
dividends in the future will depend upon earnings, capital needs, and other
factors.
Upon a liquidation of the Company, holders of Common Stock will be entitled
to a pro rata distribution of the assets of the Company, after payment of all
amounts owed to the Company's creditors, and subject to any preferential amount
payable to holders of Preferred Stock of the Company, if any.
PREFERRED STOCK
The Company's Articles of Incorporation permit the Company's Board of
Directors to issue shares of Preferred Stock in one or more series, and to fix
the relative rights, preferences, and limitations of each series.
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Among such rights, preferences, and limitations are dividend rights and rates,
provisions for redemption, rights upon liquidation, conversion privileges, and
certain voting powers.
The purpose for authorizing the Board of Directors to issue and to
designate the features of Preferred Stock is, in part, to eliminate delays
associated with a shareholder vote to authorize the issuance of Preferred Stock.
The issuance of Preferred Stock, for example in connection with a shareholder
rights plan, could have the effect of making it more difficult for a third party
to acquire, or of discouraging a third party from acquiring, a majority of the
outstanding capital stock of the Company.
The terms of any particular series of Preferred Stock, including Preferred
Stock represented by Depositary Shares, will be described in the applicable
Prospectus Supplement.
CERTAIN PROVISIONS OF THE COMPANY'S ARTICLES OF INCORPORATION
The Company's Articles of Incorporation provide for a classified Board of
Directors. The directors are divided into three classes. The directors are
elected for three-year terms, which are staggered so that the terms of one-third
of the directors expire each year. The Articles of Incorporation permit
shareholders to remove directors only for cause at a meeting by the affirmative
vote of at least a majority of the outstanding shares of Common Stock. Directors
of the Company may remove directors with or without cause.
The above-described provisions of the Company's Articles of Incorporation
may have certain anti-takeover effects. Such provisions, in addition to the
provisions described below and the possible issuance of preferred stock
discussed above, may make it more difficult for other persons, without the
approval of the Company's Board of Directors, to make a tender offer or
acquisitions of substantial amounts of the Common Stock or to launch other
takeover attempts that a shareholder might consider to be in such shareholder's
best interests.
CERTAIN PROVISIONS OF OHIO LAW
The Company is subject to several anti-takeover provisions under Ohio law
that apply to Ohio public corporations, unless the Company elects to opt out of
these provisions in its Articles of Incorporation or Regulations (by-laws). The
Company has not opted out of these takeover provisions.
Under Ohio's Control Share Acquisition Act (the "Acquisition Act"), any
"control share acquisition" of an Ohio public corporation shall be made only
with the prior authorization of the shareholders of the corporation in
accordance with the provisions of the Acquisition Act. A "control share
acquisition" is defined under the Acquisition Act to mean the acquisition,
directly or indirectly, by any person of shares of a public corporation that,
when added to all other shares of the corporation such person owns, would
entitle such person, directly or indirectly, to exercise voting power in the
election of directors within the following ranges: more than 20%, more than 33%
and a majority.
The Acquisition Act also requires that the acquiring person deliver an
"acquiring person's statement" to the Ohio public corporation. The Ohio public
corporation must then call a special meeting of its shareholders to vote upon
the proposed acquisition within 50 days after receipt of such acquiring person's
statement, unless the acquiring person agrees to a later date.
The Acquisition Act further specifies that the shareholders of the
corporation must approve the proposed control share acquisition by certain
percentages at a special meeting of shareholders at which a quorum is present.
In order to comply with the Acquisition Act, the acquiring person may only
acquire the stock of the Ohio public corporation upon the affirmative vote of:
(i) a majority of the voting power of the corporation that is represented in
person or by proxy at the special meeting and (ii) a majority of the voting
power of the corporation that is represented in person or by proxy at the
special meeting, excluding those shares of the corporation deemed to be
"interested shares" for purposes of the Act.
"Interested shares" are defined under the Act to mean shares in respect of
which the voting power is controlled by any of the following persons: (i) an
acquiring person; (ii) any officer of the Ohio public corporation; and (iii) any
employee who is also a director of the corporation. "Interested shares" also
include shares of the corporation that are acquired by any person after the date
of the first public disclosure of the proposed acquisition
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and the date of the special meeting, if either (i) the aggregate consideration
paid by such person, and any person acting in concert with him, for such shares
of the Ohio public corporation exceeds $250,000 or (ii) the number of shares
acquired by such person, and any person acting in concert with him, exceeds
one-half of one percent of the outstanding shares of the corporation.
Section 1701.59 of the Ohio Revised Code, inter alia, empowers an Ohio
corporation to indemnify any director, officer, employee or agent of the
corporation against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she 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.
Similar indemnity is authorized for such person against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith.
In addition, Section 1701.59 eliminates the personal liability in damages
of a director for violations of the director's fiduciary duty, except if it is
proved by clear and convincing evidence that his action or failure to act
involved acts or omissions undertaken with deliberate intent to cause injury to
the corporation or with reckless disregard for the best interests of the
corporation. The Company has not opted out of Section 1701.59 of the Ohio
Revised Code. This statute does not affect the liability of directors pursuant
to Section 1701.95 of the Ohio Revised Code (providing for liability of
directors for unlawful payment of dividends or unlawful distribution of assets)
nor does it affect the liability of the directors under Federal securities laws.
The Company is also subject to Ohio's Merger Moratorium Act. The Merger
Moratorium Act generally prohibits a wide range of business combinations and
other transactions (including mergers, consolidations, asset sales, loans,
disproportionate distributions of property and disproportionate issuances or
transfers of shares or rights to acquire shares) between an Ohio corporation and
a person that owns, alone or with other related parties, shares representing at
least 10% of the voting power of the corporation (an "Interested Shareholder")
for a period of three years after such person becomes an Interested Shareholder,
unless, prior to the date that the Interested Shareholder became such, the
directors approve either the transaction or the acquisition of the corporation's
shares that resulted in the person becoming an Interested Shareholder. Following
the three-year moratorium period, the corporation may engage in covered
transactions with an Interested Shareholder only if, among other things, (i) the
transaction receives the approval of the holders of two-thirds of all the voting
shares and the approval of the holders of a majority of the voting shares held
by persons other than an Interested Shareholder or (ii) the remaining
shareholders receive an amount for their shares equal to the higher of the
highest amount paid in the past by the Interested Shareholder for the
corporation's shares or the amount that would be due the shareholders if the
corporation were to dissolve.
Contemporaneous with the adoption of Ohio's Merger Moratorium Act, Ohio
enacted a so-called "green mailer disgorgement" statute which provides that a
person who announces a control bid must disgorge profits realized by that person
upon the sale of any equity securities within 18 months of the announcement of
the control bid.
The Company is also subject to Ohio's Control Bid Statute. Ohio's Control
Bid Statute provides that no offeror may make a "control bid" pursuant to a
tender offer or a request or invitation for tenders unless, on the day the
offeror commences a control bid, it files with the Ohio Division of Securities
(the "Securities Division") and the target company certain information in
respect of the offeror, his ownership of the corporation's shares and his plans
for the corporation (including, among other things, plans to terminate employee
benefit plans, close any plant or facility or reduce the work force). If the
Securities Division determines that the offeror's disclosures are inadequate, it
must act within three calendar days from the date of the offeror's filing to
issue a suspension order. If a bid is suspended, a hearing must be held within
10 calendar days from the date of the Securities Division's suspension order.
The hearing procedure must be completed no later than 16 calendar days after the
date on which the suspension was imposed.
A "control bid" under Ohio's Control Bid Statute is defined as the purchase
of or an offer to purchase any equity security of an issuer with certain
connections to Ohio from a resident of Ohio if (i) after the purchase of such
security, the offeror would directly or indirectly be the beneficial owner of
more than 10% of any class of the issued and outstanding equity securities of
the issuer or (ii) the offeror is the issuer, there is a pending control
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bid by a person other than the issuer and the number of issued and outstanding
shares of the corporation will be reduced by more than 10%.
Finally, Ohio law provides for the right of the Board of Directors to
consider the interests of various constituencies, including employees,
customers, suppliers and creditors of the Company, as well as the communities in
which the Company is located, in addition to the interest of the Company and its
shareholders, in discharging their duties in determining what is in the
Company's best interests.
The above-described provisions of Ohio law may have certain antitakeover
effects. Those provisions make it more difficult for other persons, without the
approval of the Company's Board of Directors, to make a tender offer or
acquisitions of substantial amounts of the Common Stock or to launch other
takeover attempts that a shareholder might consider in such shareholder's best
interests.
TRANSFER AGENT
American Stock Transfer & Trust Company, New York, New York, acts as
transfer agent for the Company's Common Stock.
The transfer agent for any series of Preferred Stock will be named in the
applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
The Company may offer Depositary Shares (either separately or together with
other Securities) representing fractional interests in shares of Preferred Stock
of any series. In connection with the issuance of any Depositary Shares, the
Company will enter into a deposit agreement (a "Deposit Agreement") with a bank
or trust company, as depositary (the "Preferred Stock Depositary"), which will
be named in the applicable Prospectus Supplement. Depositary Shares will be
evidenced by depositary receipts (the "Depositary Receipts") issued pursuant to
the related Deposit Agreement. The summary of certain provisions of the
Depositary Shares and the Deposit Agreement set forth below and the summary of
certain terms of a particular issue of Depositary Shares and the related Deposit
Agreement set forth in the applicable Prospectus Supplement do not purport to be
complete and are subject to and qualified in their entirety by reference to all
the provisions of the form of Deposit Agreement, together with the form of
related Depositary Receipt which will be filed as an exhibit to or incorporated
by reference in the Registration Statement, all of which are incorporated herein
by reference.
The following description of Depositary Shares sets forth certain general
terms and provisions of the Depositary Shares and the related Deposit Agreement
to which any Prospectus Supplement may relate. Certain other terms of any such
Depositary Shares and the related Deposit Agreement will be described in the
applicable Prospectus Supplement. To the extent that any particular terms of the
Depositary Shares or the related Deposit Agreement described in a Prospectus
Supplement differ from any of the terms described herein, then such terms
described herein shall be deemed to have been superseded by such Prospectus
Supplement.
INFORMATION TO BE PROVIDED IN THE APPLICABLE PROSPECTUS SUPPLEMENT
The Company may provide for the issuance by the Preferred Stock Depositary
of Depositary Receipts evidencing the related Depositary Shares, each of which
Depositary Shares in turn will represent a fractional interest (which will be
specified in the applicable Prospectus Supplement) in one share of a series of
Preferred Stock. Shares of Preferred Stock of any series represented by
Depositary Shares will be deposited under a separate Deposit Agreement. Subject
to the terms of the Deposit Agreement, each owner of a Depositary Receipt will
be entitled, in proportion to the fraction of a share of Preferred Stock
represented by the related Depositary Share, to all the rights, preferences and
privileges of, and will be subject to all of the limitations and restrictions
on, the Preferred Stock represented thereby (including, if applicable and
subject to certain matters discussed below, dividend, voting, conversion,
exchange, redemption and liquidation rights).
Depositary Shares may be issued in respect of shares of the Preferred Stock
of any series. Immediately following the issuance of any such shares of
Preferred Stock by the Company, the Company will deposit such
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shares of Preferred Stock with the relevant Preferred Stock Depositary and will
cause the Preferred Stock Depositary to issue, on behalf of the Company, the
related Depositary Receipts.
Reference is made to the applicable Prospectus Supplement relating to the
Depositary Shares offered thereby for specific terms, including (where
applicable): (i) the terms of the series of Preferred Stock deposited by the
Company under the related Deposit Agreement; (ii) the number of such Depositary
Shares and the fraction of one share of such Preferred Stock represented by one
such Depositary Share; (iii) whether such Depositary Shares will be listed on
any securities exchange; (iv) whether such Depositary Shares will be sold with
any other Securities and, if so, the amount and terms thereof; and (v) any other
specific terms of such Depositary Shares and the related Deposit Agreement.
Depositary Receipts may be surrendered for transfer or exchange for new
Depositary Receipts of different authorized denominations at any office or
agency of the relevant Preferred Stock Depositary maintained for such purpose,
subject to the terms of the related Deposit Agreement. Unless otherwise
specified in the applicable Prospectus Supplement, Depositary Receipts will be
issued in denominations evidencing any whole number of Depositary Shares. No
service charge will be made for any permitted transfer or exchange of Depositary
Receipts, but the Company or the Preferred Stock Depositary may require payment
of any tax or other governmental charge payable in connection therewith.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of the related Preferred Stock to the
record holders of Depositary Receipts in proportion, insofar as possible, to the
number of Depositary Receipts owned by such holders on the relevant record date.
The Preferred Stock Depositary will distribute only such amount, however, as can
be distributed without attributing to any holder of Depositary Receipts a
fraction of one cent, and any balance not so distributed will be added to and
treated as part of the next sum, if any, received by the Preferred Stock
Depositary for distribution to the record holders of Depositary Receipts.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto in proportion, insofar as possible, to the
number of Depositary Receipts owned by such holders on the relevant record date,
unless the Preferred Stock Depositary determines that it is not feasible to make
such distribution, in which case the Preferred Stock Depositary may, with the
approval of the Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including sale (public or
private) of such property and distribution of the net proceeds from such sale to
such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders of
the related series of Preferred Stock will be made available to holders of
Depositary Receipts.
The amount distributed in any of the foregoing cases will be reduced by any
amount required to be withheld by the Company or the Preferred Stock Depositary
on the account of taxes.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of the Depositary Receipts at an office or agency of the
Preferred Stock Depositary maintained for such purpose (unless the related
shares of Preferred Stock have previously been called for redemption), the
holder thereof will be entitled to delivery, at such office or agency, to or
upon such holder's order, of the number of whole shares of the related series of
Preferred Stock and any money or other property represented by such Depositary
Receipts. Shares of Preferred Stock so withdrawn, however, may not be
redeposited. If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the number of whole shares of Preferred
Stock to be withdrawn, the Preferred Stock Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares.
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REDEMPTION AND REPURCHASE OF PREFERRED STOCK
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption at the option of the Company, then, whenever the Company redeems
shares of Preferred Stock of such series held by the Preferred Stock Depositary,
the Preferred Stock Depositary will redeem as of the same redemption date the
number of Depositary Shares representing the shares of the Preferred Stock so
redeemed, provided the Company shall have paid in full to the Preferred Stock
Depositary the redemption price of the Preferred Stock to be redeemed plus any
other amounts or property payable with respect to the Preferred Stock to be
redeemed. The redemption price per Depositary Share will be equal to the
redemption price and any other amounts or property per share payable with
respect to the Preferred Stock multiplied by the fraction of a share of
Preferred Stock represented by one such Depositary Share. If less than all of
the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
will be selected by the Preferred Stock Depositary by lot or pro rata or other
equitable method, in each case as may be determined by the Company. If the
Depositary Shares evidenced by a Depositary Receipt are to be redeemed in part
only, one or more new Depositary Receipts will be issued for any Depositary
Shares not so redeemed.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Receipts evidencing the Depositary Shares so called
for redemption will cease, except the right to receive any monies payable upon
such redemption and any money or other property to which the holders of such
Depositary Receipts were entitled upon such redemption upon surrender of such
Depositary Receipts to the Preferred Stock Depositary.
Depositary Shares, as such, are not subject to repurchase by the Company at
the option of the holders. Nevertheless, if the Preferred Stock represented by
Depositary Shares is subject to repurchase of the option of the holders, the
related Depositary Receipts may be surrendered by the holders thereof to the
Preferred Stock Depositary with written instructions to the Preferred Stock
Depositary to instruct the Company to repurchase the Preferred Stock represented
by the Depositary Shares evidenced by such Depositary Receipts at the applicable
repurchase price specified in the related Prospectus Supplement. The Company,
upon receipt of such instructions and subject to the Company having funds
legally available therefor, will repurchase the requisite whole number of shares
of such Preferred Stock from the Preferred Stock Depositary, who in turn will
repurchase such Depositary Receipts. Notwithstanding the foregoing, holders
shall only be entitled to request the repurchase of Depositary Shares
representing one or more whole shares of the related Preferred Stock. The
repurchase price per Depositary Share will be equal to the repurchase price and
any other amounts per share payable with respect to the Preferred Stock
multiplied by the fraction of a share of Preferred Stock represented by one
Depositary Share. If the Depositary Shares evidenced by a Depositary Receipt are
to be repurchased in part only, one or more new Depositary Receipts will be
issued for any Depositary Shares not to be repurchased.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock of any series represented by Depositary Shares are entitled to vote, the
relevant Preferred Stock Depositary will mail the information contained in such
notice of meeting to the record holders of the related Depositary Receipts. Each
record holder of Depositary Receipts evidencing Depositary Shares on the record
date (which will be the same date as the record date for the Preferred Stock)
will be entitled to instruct the Preferred Stock Depositary as to the exercise
of the voting rights pertaining to the amount of Preferred Stock represented by
such holder's Depositary Shares. The Preferred Stock Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all reasonable action which may be deemed
necessary by the Preferred Stock Depositary in order to enable the Preferred
Stock Depositary to do so. The Preferred Stock Depositary will abstain from
voting shares of Preferred Stock to the extent it does not receive specific
instructions from the holders of Depositary Receipts evidencing the Depositary
Shares representing such Preferred Stock.
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CONVERSION AND EXCHANGE OF PREFERRED STOCK
If the Preferred Stock represented by Depositary Shares is exchangeable at
the option of the Company for other Securities, then, whenever the Company
exercises its option to exchange all or a portion of such shares of Preferred
Stock held by the Preferred Stock Depositary, the Preferred Stock Depositary
will exchange as of the same exchange date a number of such Depositary Shares
representing the shares of the Preferred Stock so exchanged, provided the
Company shall have issued and deposited with the Preferred Stock Depositary the
Securities for which such shares of Preferred Stock are to be exchanged. The
exchange rate per Depositary Share shall be equal to the exchange rate per share
of Preferred Stock multiplied by the fraction of a share of Preferred Stock
represented by one Depositary Share. If less than all of the Depositary Shares
are to be exchanged, the Depositary Shares to be exchanged will be selected by
the Preferred Stock Depositary by lot or pro rata or other equitable method, in
each case as may be determined by the Company. If the Depositary Shares
evidenced by a Depositary Receipt are to be exchanged in part only, a new
Depositary Receipt or Receipts will be issued for any Depositary Shares not to
be exchanged.
Depositary Shares, as such, are not convertible or exchangeable at the
option of the holders into other Securities or property. Nevertheless, if the
Preferred Stock represented by Depositary Shares is convertible into or
exchangeable for other Securities at the option of the holders, the related
Depositary Receipts may be surrendered by holders thereof to the Preferred Stock
Depositary with written instructions to the Preferred Stock Depositary to
instruct the Company to cause conversion or exchange, as the case may be, of the
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipts into a whole number of shares of Common Stock or Preferred
Stock, a whole number of Common Stock Warrants, or Debt Securities in authorized
denominations, as specified in the related Prospectus Supplement. The Company,
upon receipt of such instructions and any amounts payable in respect thereof,
will cause the conversion or exchange, as the case may be, and will deliver to
the holders such number of whole shares of Common Stock or Preferred Stock, a
whole number of Common Stock Warrants, or a principal amount of Debt Securities
in authorized denominations (and cash in lieu of any fractional Security). The
exchange or conversion rate per Depositary Share shall be equal to the exchange
or conversion rate per share of Preferred Stock multiplied by the fraction of a
share of Preferred Stock represented by one Depositary Share. If the Depositary
Shares evidenced by a Depositary Receipt are to be converted or exchanged in
part only, a new Depositary Receipt or Receipts will be issued for any
Depositary Shares not to be converted or exchanged.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary Receipts evidencing Depositary Shares and any provision of
the related Deposit Agreement may at any time be amended by agreement between
the Company and the Preferred Stock Depositary. However, any amendment that
materially and adversely alters the rights of the holders of Depositary Receipts
issued under any Deposit Agreement will not be effective unless such amendment
has been approved by the holders of at least a majority of such Depositary
Receipts then outstanding (or such greater proportion as may be required by the
rules of any securities exchange on which the related Depositary Shares may be
listed). In no event may any such amendment impair the right of any holder of
Depositary Receipts, subject to the conditions specified in the Deposit
Agreement, to receive the related Preferred Stock upon surrender of such
Depositary Receipts as described above under "--Withdrawal of Preferred Stock."
The Deposit Agreement may be terminated by the Company upon not less than
60 days' notice to the Preferred Stock Depositary. In any such case, the
Preferred Stock Depositary shall deliver or make available to each holder of the
related Depositary Receipts, upon surrender of such Depositary Receipts, such
number of whole shares of the related series of Preferred Stock represented by
the Depositary Shares evidenced by such Depositary Receipts, together with cash
in lieu of any fractional shares (to the extent the Company has deposited such
cash with the Preferred Stock Depositary). The Deposit Agreement will
automatically terminate if all of the shares of Preferred Stock deposited
thereunder shall have been withdrawn, redeemed, converted or exchanged or if
there shall have been a final distribution in respect of such Preferred Stock in
connection with any liquidation, dissolution or winding up of the Company.
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CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay the fees and expenses of the Preferred Stock
Depositary in connection with the performance of its duties under the Deposit
Agreement, and will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. Holders of
Depositary Receipts will be required to pay all other transfer and other taxes
and governmental charges (including taxes and other governmental charges in
connection with the transfer, exchange, surrender or conversion of Depositary
Receipts) and such other charges as are expressly provided in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if
either is prevented or delayed by law or any circumstances beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depositary under the Deposit Agreement will be
limited to performing their duties thereunder without gross negligence or
willful misconduct, and the Company and the Preferred Stock Depositary will not
be obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or any related shares of Preferred Stock or Depositary
Receipts unless satisfactory indemnity is furnished. The Company and the
Preferred Stock Depositary may rely on advice of counsel, accountants or other
advisors, and information provided by persons presenting shares of Preferred
Stock for deposit, holders of Depositary Receipts or other persons believed to
be authorized or competent and on documents believed to be genuine.
In the event that the Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on the
one hand, and the Company, on the other hand, the Preferred Stock Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
DESCRIPTION OF WARRANTS
The Company has no Warrants outstanding (other than options issued under
the Company's stock option plans). The Company may issue Warrants for the
purchase of Debt Securities, Common Stock or Preferred Stock registered hereby.
Warrants may be issued independently or together with any other securities
offered by any Prospectus Supplement and may be attached to or separate from
such securities. Each series of Warrants will be issued under a separate warrant
agreement (each, a "Warrant Agreement") to be entered into between the Company
and a warrant agent specified in the applicable Prospectus Supplement (the
"Warrant Agent"). The Warrant Agent will act solely as an agent of the Company
in connection with the Warrants of such series and will not assume any
obligation or relationship of agency or trust for or with any provisions of the
Warrants offered hereby. Further terms of the Warrants and the applicable
Warrant Agreements will be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of the
Warrants in respect of which this Prospectus is being delivered, including,
where applicable, the following: (i) the title of such Warrants; (ii) the
aggregate number of such Warrants; (iii) the price or prices at which such
Warrants will be issued; (iv) the designation, terms and number of securities
purchasable upon exercise of such Warrants; (v) the designation and terms of the
securities, if any, with which such Warrants are issued and the number of such
Warrants issued with each such security; (vi) the date, if any, on and after
which such Warrants and the related securities will be separately transferable;
(vii) the price at which each security purchasable upon exercise of such
Warrants may be
22
<PAGE> 25
purchased; (viii) the date on which the right to exercise such Warrants shall
commence and the date on which such right shall expire; (ix) the minimum or
maximum amount of such Warrants which may be exercised at any one time; (x)
information with respect to book-entry procedures, if any; and (xi) any other
terms of such Warrants, including terms, procedures and limitations relating to
the exchange and exercise of such Warrants.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The Trust may issue only one series of Trust Preferred Securities which
shall have terms described in the Prospectus Supplement relating thereto. The
Declaration of the Trust will authorize the Regular Trustees to issue on behalf
of the Trust the Trust Preferred Securities. The Declaration will be qualified
as an indenture under the Trust Indenture Act. The form of Declaration has been
or will be filed or incorporated by reference as an exhibit to the Registration
Statement. The terms of the Declaration will be those set forth in the
Declaration and those made part of the Declaration by the Trust Indenture Act.
The summary of certain provisions of the Trust Preferred Securities and the
Declaration set forth below and in any Prospectus Supplement do not purport to
be complete and are subject to and are qualified in their entirety by reference
to all of the provisions of the Declaration and the Trust Securities, which
provisions (including defined terms) are incorporated herein by reference.
The following description of the Trust Preferred Securities and the
Declaration sets forth certain general terms and provisions of the Trust
Preferred Securities and the Declaration to which any Prospectus Supplement may
relate. Certain other specific terms of the Trust Preferred Securities and the
Declaration will be described in the applicable Prospectus Supplement. To the
extent that any particular terms of any Trust Preferred Securities or the
Declaration described in a Prospectus Supplement differ from any of the terms
described herein, then such terms described herein shall be deemed to have been
superseded by such Prospectus Supplement.
The Trust Preferred Securities will have such terms, including
distributions, redemption, voting, liquidation, conversion rights and such other
preferred, deferred or other special rights or such restrictions as shall be set
forth in the Declaration or made part of the Declaration by the Trust Indenture
Act, and which will generally mirror the terms of the Subordinated Debt
Securities held by the Trust and described in the Prospectus Supplement related
23
<PAGE> 26
thereto. Reference is made to the Prospectus Supplement relating to the Trust
Preferred Securities for specific terms, including
<TABLE>
<C> <S>
(i) the designation of such Trust Preferred Securities;
(ii) the number of Trust Preferred Securities;
(iii) the annual distribution rate (or method of determining such
rate) for the Trust Preferred Securities and the date or
dates upon which such distributions shall be payable;
(iv) whether distributions on the Trust Preferred Securities
shall be cumulative, and, in the case of Trust Preferred
Securities having such cumulative distribution rights, the
date or dates or method of determining the date or dates
from which distributions on the Trust Preferred Securities
shall be cumulative;
(v) the amount or amounts which shall be paid out of the assets
of the Trust to the holders of the Trust Preferred
Securities upon voluntary or involuntary dissolution,
winding-up or termination of the Trust;
(vi) the right or obligation, if any, of the Trust to purchase or
redeem the Trust Preferred Securities and the price or
prices at which, the period or periods within which, and the
terms and conditions upon which, the Trust Preferred
Securities shall or may be purchased or redeemed, in whole
or in part, pursuant to such obligation;
(vii) the voting rights, if any, of the Trust Preferred Securities
in addition to those required by law, including the number
of votes per Trust Preferred Security and any requirement
for the approval by the holders of the Trust Preferred
Securities, as a condition to specified action or amendments
to the Declaration;
(viii) the terms and conditions, if any, upon which the Trust
Preferred Securities may be converted into or exchanged for
shares of Common Stock or other Securities, including the
conversion price per share or conversion rate and the
circumstances, if any, under which any such conversion right
shall expire;
(ix) the terms and conditions, if any, upon which the
Subordinated Debt Securities may be distributed to holders
of the Trust Preferred Securities;
(x) if applicable, any securities exchange upon which the Trust
Preferred Securities shall be listed; and
(xi) any other relevant rights, preferences, privileges,
limitations or restrictions of the Trust Preferred
Securities.
</TABLE>
All Trust Preferred Securities offered hereby will be guaranteed by the
Company to the extent set forth below under "Trust Preferred Securities
Guarantee." Certain United States Federal income tax considerations applicable
to any offering of Trust Preferred Securities will be described in the
Prospectus Supplement relating thereto.
In connection with the issuance of Trust Preferred Securities, the Trust
will issue one series of Trust Common Securities. The Declaration will authorize
the Regular Trustees to issue on behalf of the Trust one series of Trust Common
Securities having such terms including distributions, redemption, voting and
liquidation rights or such restrictions as shall be set forth therein. The terms
of the Trust Common Securities will be substantially identical to the terms of
the Trust Preferred Securities, and the Trust Common Securities will rank
equally ("pari passu"), and payments will be made thereon pro rata, with the
Trust Preferred Securities except that, upon an event of default under the
Declaration, the rights of the holders of the Trust Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Trust
Preferred Securities. Except in certain limited circumstances, the Trust Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Trustees. All of the Trust Common Securities will be directly or
indirectly owned by the Company.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If an event of default under the Declaration occurs and is continuing, then
the holders of the Trust Preferred Securities would rely on the enforcement by
the Property Trustee of its rights as a holder of the Subordinated Debt
Securities against the Company. In addition, the holders of a majority in
liquidation amount of the Trust
24
<PAGE> 27
Preferred Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee or to
direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Subordinated Debt
Securities. If the Property Trustee fails to enforce its rights under such
Subordinated Debt Securities, a holder of the Trust Preferred Securities, to the
fullest extent permitted by law, may institute a legal proceeding directly
against the Company to enforce the Property Trustee's rights under such
Subordinated Debt Securities without first instituting any legal proceeding
against the Property Trustee or any other person or entity. Notwithstanding the
foregoing, if an event of default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Company to pay
the principal of or premium or interest, if any, on such Subordinated Debt
Securities on the date such principal, premium or interest, as the case may be,
is otherwise payable (or in the case of redemption, on the redemption date),
then a holder of the Trust Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of the principal, premium
or interest, as the case may be, on such Subordinated Debt Securities having a
principal amount equal to the aggregate liquidation amount of the Trust
Preferred Securities of such holder (a "Direct Action") on or after the
respective due date specified in the Subordinated Debt Securities. In connection
with such Direct Action, the Company will be subrogated to the rights of such
holder of the Trust Preferred Securities under the Declaration to the extent of
any payment made by the Company to such holder of Trust Preferred Securities in
such Direct Action.
TRUST PREFERRED SECURITIES GUARANTEE
Set forth below is a summary of information concerning the Trust Preferred
Securities Guarantee which will be executed and delivered by the Company for the
benefit of the holders from time to time of Trust Preferred Securities. The
Trust Preferred Securities Guarantee will be qualified as an indenture under the
Trust Indenture Act. A trustee whose name will be set forth in the applicable
Prospectus Supplement will act as the trustee under the Trust Preferred
Securities Guarantee (the "Preferred Guarantee Trustee") for purposes of the
Trust Indenture Act. The form of Trust Preferred Securities Guarantee has been
or will be filed or incorporated by reference as an exhibit to the Registration
Statement. The terms of the Trust Preferred Securities Guarantee will be those
set forth in the Trust Preferred Securities Guarantee and those made part of the
Trust Preferred Securities Guarantee by the Trust Indenture Act. The summary of
certain provisions of the Trust Preferred Securities Guarantee set forth below
and in any Prospectus Supplement does not purport to be complete and is subject
to and qualified in its entirety by reference to all of the provisions of the
Trust Preferred Securities Guarantee, which provisions of the Trust Preferred
Securities Guarantee (including defined terms) are incorporated herein by
reference. The Trust Preferred Securities Guarantee will be held by the
Preferred Guarantee Trustee for the benefit of the holders of the Trust
Preferred Securities.
The following description of the Trust Preferred Securities Guarantee sets
forth certain general terms and provisions of the Trust Preferred Securities
Guarantee to which any Prospectus Supplement may relate. Certain other specific
terms of the Trust Preferred Securities Guarantee will be described in the
applicable Prospectus Supplement. To the extent that any particular terms of the
Trust Preferred Securities Guarantee described in a Prospectus Supplement differ
from any of the terms described herein, then such terms described herein shall
be deemed to have been superseded by such Prospectus Supplement.
Terms of the Trust Preferred Securities Guarantee
Pursuant to the Trust Preferred Securities Guarantee, the Company will
agree, to the extent set forth therein, to pay in full, to the holders of the
Trust Preferred Securities, the Guarantee Payments (as defined herein) (except
to the extent paid by the Trust), as and when due, regardless of any defense,
right of setoff or counterclaim which the Trust may have or assert. The
following payments with respect to the Trust Preferred Securities to the extent
not paid by the Trust (the "Guarantee Payments"), will be subject to the Trust
Preferred Securities Guarantee thereof (without duplication):
(i) any accrued and unpaid distributions which are required to be paid on
such Trust Preferred Securities, to the extent the Trust shall have
funds available therefor;
25
<PAGE> 28
(ii) the redemption price (if any) set forth in the applicable Prospectus
Supplement (the "Redemption Price"), which will not be lower than the
liquidation amount, and all accrued and unpaid distributions, to the
extent the Trust has funds available therefor, with respect to any
Trust Preferred Securities called for redemption by the Trust and
(iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the
distribution of Subordinated Debt Securities to the holders of Trust
Preferred Securities or the conversion or redemption of all of the
Trust Preferred Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on the
Trust Preferred Securities to the date of payment, to the extent the
Trust has funds available therefor, and (b) the amount of assets of
the Trust remaining available for distribution to holders of the
Trust Preferred Securities in liquidation of the Trust.
The Company's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of Trust
Preferred Securities or by causing the Trust to pay such amounts to such
holders.
The Trust Preferred Securities Guarantee will not apply to any payment of
distributions on the Trust Preferred Securities except to the extent the Trust
shall have funds available therefor. If the Company does not make interest
payments on the Subordinated Debt Securities purchased by the Trust, the Trust
will not pay distributions on the Trust Preferred Securities issued by the Trust
and will not have funds available therefor. The Trust Preferred Securities
Guarantee, when taken together with the Company's obligations under the
Subordinated Debt Securities, the Indenture and the Declaration, including its
obligations to pay certain costs, expenses, debts and liabilities of the Trust
(other than with respect to the Trust Securities), will provide a full and
unconditional guarantee on a subordinated basis by the Company of payments due
on the Trust Preferred Securities.
The Company has also agreed separately to guarantee the obligations of the
Trust with respect to the Trust Common Securities (the "Trust Common Securities
Guarantee") to the same extent as the Trust Preferred Securities Guarantee,
except that upon an event of default under the Indenture, holders of Trust
Preferred Securities shall have priority over holders of Trust Common Securities
with respect to distributions and payments on liquidation, redemption or
otherwise.
Certain covenants of the Company to be set forth in the Trust Preferred
Securities Guarantee will be described in the applicable Prospectus Supplement.
Modification of the Trust Preferred Securities Guarantee; Assignment
Except with respect to any changes which do not materially adversely affect
the rights of holders of Trust Preferred Securities (in which case no vote will
be required), the Trust Preferred Securities Guarantee may be amended only with
the prior approval of the holders of not less than a majority in liquidation
amount of the outstanding Trust Preferred Securities. The manner of obtaining
any such approval of holders of such Trust Preferred Securities will be as set
forth in an accompanying Prospectus Supplement. All guarantees and agreements
contained in the Trust Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Company and shall inure
to the benefit of the holders of the Trust Preferred Securities then
outstanding.
Termination
The Trust Preferred Securities Guarantee will terminate (a) upon full
payment of the Redemption Price of all Trust Preferred Securities, (b) upon
distribution of the Subordinated Debt Securities held by the Trust to the
holders of the Trust Preferred Securities or the conversion or redemption, if
applicable, of all of the Trust Preferred Securities or (c) upon full payment of
the amounts payable in accordance with the Declaration upon liquidation of the
Trust. The Trust Preferred Securities Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities must restore payment of any sums paid under the Trust
Preferred Securities or the Trust Preferred Securities Guarantee.
26
<PAGE> 29
Events of Default
An event of default under the Trust Preferred Securities Guarantee will
occur upon (a) the failure of the Company to perform any of its payment or other
obligations thereunder or (b) if applicable, the failure by the Company to
deliver Common Stock or other applicable securities upon an appropriate election
by the holder or holders of Trust Preferred Securities to convert the Trust
Preferred Securities into shares of Common Stock or other applicable securities,
as the case may be.
The holders of a majority in liquidation amount of the Trust Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of the Trust Preferred Securities Guarantee or to direct the exercise of
any trust or power conferred upon the Preferred Guarantee Trustee under such
Trust Preferred Securities. If the Preferred Guarantee Trustee fails to enforce
such Trust Preferred Securities Guarantee, any holder of Trust Preferred
Securities may institute a legal proceeding directly against the Company to
enforce the Preferred Guarantee Trustee's rights under such Trust Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Trust, the Preferred Guarantee Trustee or any other person or entity. The
Company will waive any right or remedy to require that any action be brought
first against the Trust or any other person or entity before proceeding directly
against the Company.
Status of the Trust Preferred Securities Guarantee
The Trust Preferred Securities Guarantee will constitute an unsecured
obligation of the Company and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Company, (ii) pari passu in right of
payment with the most senior preferred or preference stock now or hereafter
issued by the Company, if any, and with any guarantee now or hereafter entered
into by the Company in respect of any preferred or preference stock of any
affiliate of the Company and (iii) senior to Common Stock. The terms of the
Trust Preferred Securities provide that each holder of Trust Preferred
Securities by acceptance thereof agrees to the subordination provisions and
other terms of the Trust Preferred Securities Guarantee relating thereto.
The Trust Preferred Securities Guarantee will constitute a guarantee of
payment and not of collection (that is, the guaranteed party may institute a
legal proceeding directly against the guarantor to enforce its rights under the
guarantee without instituting a legal proceeding against any other person or
entity).
Information Concerning the Preferred Guarantee Trustee
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to the Trust Preferred Securities Guarantee, undertakes to perform only
such duties as are specifically set forth in such Trust Preferred Securities
Guarantee and, after default, shall exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Preferred Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by a Trust Preferred
Securities Guarantee at the request of any holder of the Trust Preferred
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby.
PLAN OF DISTRIBUTION
The Company or the Trust may offer securities directly or through
underwriters, dealers or agents. The supplement will identify those
underwriters, dealers or agents and will describe the plan of distribution. If
we do not name a firm in the supplement, that firm may not directly or
indirectly participate in any underwriting of those securities, although it may
participate in the distribution of securities under circumstances entitling it
to a dealer's allowance or agent's commission.
Any underwriting agreement probably will entitle the underwriters to
indemnity against certain civil liabilities under the Federal securities laws
and other laws. The underwriters' obligations to purchase securities will be
subject to certain conditions and generally will require them to purchase all of
the securities if any are purchased.
27
<PAGE> 30
Unless otherwise noted in the supplement, the securities will be offered by
the underwriters, if any, when, as and if issued by the Company or the Trust,
delivered to and accepted by the underwriters and subject to their right to
reject orders in whole or in part.
The Company and the Trust may sell securities to dealers, as principals.
Those dealers then may resell the securities to the public at varying prices set
by those dealers from time to time.
The Company and the Trust also may offer securities through agents. Agents
generally act on a "best efforts" basis during their appointment, meaning they
are not obligated to purchase securities.
Dealers and agents may be entitled to indemnification as underwriters by us
against certain liabilities under the Federal securities laws and other laws.
The Company or the Trust or the underwriters or agents may solicit offers
by institutions approved by us to purchase securities under contracts providing
for future payment. Permitted institutions include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others. Certain conditions apply to those purchases.
Any underwriter may engage in over-allotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934. Over-allotment involves sales in
excess of the offering size, which creates a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short covering transactions
involve purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the securities originally sold
by the dealer are purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it
would otherwise be. If commenced, the underwriters may discontinue those
activities at any time.
The supplement will set forth the anticipated delivery date of the
securities being sold at that time.
LEGAL MATTERS
Unless otherwise noted in a supplement, Cowden, Humphrey & Sarlson Co.,
L.P.A., Cleveland, Ohio, will pass on the legality of the securities offered
through this Prospectus and any supplement. Brown & Wood LLP, New York, New York
will act as counsel for any underwriters or agents, unless otherwise noted in a
supplement. Cowden, Humphrey & Sarlson Co., L.P.A. will rely as to certain
matters of New York law upon the opinion of Brown & Wood LLP, and Brown & Wood
LLP will rely as to certain matters of Ohio law upon the opinion of Cowden,
Humphrey & Sarlson Co., L.P.A.
EXPERTS
The consolidated financial statements of Advanced Lighting Technologies,
Inc. and subsidiaries as of June 30, 1997 and 1996 and for each of the three
years in the period ended June 30, 1997 incorporated by reference in this
Prospectus and Registration Statement and the financial statements of Ruud
Lighting, Inc. as of November 30, 1997 and 1996 and for each of the three years
in the period ended November 30, 1997 incorporated by reference in this
Prospectus and Registration Statement have been audited by Ernst & Young LLP,
independent auditors as set forth in their reports thereon and are incorporated
by reference in reliance upon such reports given upon the authority of such firm
as experts in accounting and auditing.
28
<PAGE> 31
======================================================
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. WE HAVE AUTHORIZED NO ONE
TO PROVIDE YOU WITH DIFFERENT INFORMATION.
WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY LOCATION WHERE THE OFFER
IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS, INCLUDING
INFORMATION INCORPORATED BY REFERENCE, IS ACCURATE AS OF ANY DATE OTHER THAN THE
DATE ON THE FRONT OF THE PROSPECTUS.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information... 2
The Company........................... 3
The Trust............................. 4
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends........... 5
Special Note Regarding Forward-Looking
Statements.......................... 5
Use Of Proceeds....................... 5
Description Of Debt Securities........ 5
Description Of Capital Stock.......... 15
Description Of Depositary Shares...... 18
Description of Warrants............... 22
Description of Trust Preferred
Securities.......................... 23
Plan Of Distribution.................. 27
Legal Matters......................... 28
Experts............................... 28
</TABLE>
======================================================
======================================================
$300,000,000
ADVANCED LIGHTING
TECHNOLOGIES, INC.
ADLT TRUST I
DEBT SECURITIES, COMMON STOCK,
PREFERRED STOCK, DEPOSITARY SHARES
AND WARRANTS OF
ADVANCED LIGHTING TECHNOLOGIES, INC.
TRUST PREFERRED SECURITIES OF
ADLT TRUST I
------------------------
PROSPECTUS
------------------------
, 1998
======================================================
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated amounts of the expenses of and related to the offering are as
follows:
<TABLE>
<S> <C>
Registration fee............................................ $ 88,500
Rating agency fees*......................................... 25,000
Printing fees*.............................................. 150,000
NASD fee.................................................... 30,500
Legal fees and expenses*.................................... 240,000
Accounting fees and expenses*............................... 180,000
NASDAQ National Market listing fees*........................ 35,000
Trustee fees and expenses*.................................. 4,500
Miscellaneous expenses*..................................... 46,500
--------
Total*................................................. $800,000
</TABLE>
- ------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 1701.59 of the Ohio Revised Code, which
eliminates the personal liability in damages of a director for violations of the
director's fiduciary duty, except if it is proved by clear and convincing
evidence that his action or failure to act involved acts or omissions undertaken
with deliberate intent to cause injury to the corporation or with reckless
disregard for the best interests of the corporation. This statute does not
affect the liability of directors pursuant to Section 1701.95 of the Ohio
Revised Code (providing for liability of directors for unlawful payment of
dividends or unlawful distribution of assets).
Reference is made to section 1701.13 of the Ohio Revised Code, which
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative other than an action by or in the name of the corporation (a
"derivative action") if they acted in good faith and in a manner they 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 their conduct was unlawful. A similar standard is applicable in the case
of derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's articles of
incorporation, code of regulations, disinterested director vote, shareholder
vote, agreement or otherwise.
Reference is made to Article Seven of the Code of Regulations (by-laws) of
the Company contained in Exhibit 3.2 hereto which provides for the
indemnification of directors and officers to the fullest extent permitted by
Ohio law.
Reference is also made to the Underwriting Agreement to be filed or
incorporated by reference as Exhibit 1.1 hereto, which will provide for
indemnification of controlling persons, directors and certain officers of the
Company against certain liabilities.
II-1
<PAGE> 33
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Articles of Incorporation of Advanced
Lighting Technologies, Inc. (incorporated by reference to
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the Quarterly Period ended December 31,1996)
3.2 Code of Regulations of Advanced Lighting Technologies, Inc.
(incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (no. 33-97902), effective
December 11, 1995)
4.1 Form of Indenture
4.2 Indenture, dated as of March 18, 1998, between The Company
and the Bank of New York (incorporated by reference to
Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q
for the Quarterly Period ended March 31, 1998)
4.3 Form of Senior Debt Security*
4.4 Form of Subordinated Debt Security*
4.5 Form of Convertible Debt Security*
4.6 Form of Preferred Stock Certificate of Designation*
4.7 Form of Warrant*
4.8 Form of Warrant Agreement*
4.9 Form of Deposit Agreement*
4.10 Declaration of Trust of ADLT Trust I
4.11 Form of Amended and Restated Declaration of Trust, including
form of Preferred Security of the Trust**
4.12 Form of Guarantee Agreement with respect to the Preferred
Securities of the Trust**
4.13 Form of 8% Senior Note due 2008
5.1 Opinion of Cowden, Humphrey & Sarlson Co., L.P.A. as to the
legality of the securities to be issued other than the
Preferred Securities of the Trust
5.2 Opinion of Brown & Wood LLP regarding certain matters
relating to New York law
5.3 Opinion of Potter Anderson & Corroon LLP as to the validity
of the Preferred Securities of the Trust**
12.1 Statement of Computation of Ratios of Advanced Lighting
Technologies, Inc.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cowden, Humphrey & Sarlson Co., L.P.A. (included
in Exhibit 5.1)
23.3 Consent of Brown & Wood LLP (included in Exhibit 5.2)
23.4 Consent of Potter Anderson & Corroon LLP (included in
Exhibit 5.3)**
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility with respect to the Debt
Securities*
25.2 Form T-1 Statement of Eligibility with respect to the Debt
Securities issuable under the Indenture dated as of March
18, 1998, between the Company and The Bank of New York
25.3 Form T-1 Statement of Eligibility with respect to the
Amended and Restated Declaration of Trust*
25.4 Form T-1 Statement of Eligibility with respect to the
Preferred Securities Guarantee*
</TABLE>
- ---------------
* To be filed with a Current Report on Form 8-K or a Post-Effective Amendment
to Registration Statement
** To be filed by Pre-Effective Amendment
ITEM 17. UNDERTAKINGS
(a) Each of the undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-2
<PAGE> 34
(ii) 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 and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrants pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) 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 the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants' 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
plan's 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 the time shall be deemed to be
the initial bona fide offering thereof.
(c) 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
Securities Act of 1933 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, the registrants 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 35
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CLEVELAND, STATE OF OHIO,
ON JULY 7, 1998.
ADVANCED LIGHTING TECHNOLOGIES, INC.
By: /s/ Wayne R. Hellman
------------------------------------
Wayne R. Hellman,
Chief Executive Officer
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ Wayne R. Hellman Chief Executive Officer and Director July 7, 1998
- ------------------------------------------------
Wayne R. Hellman
/s/ Alan J. Ruud Vice Chairman and Director July 7, 1998
- ------------------------------------------------
Alan J. Ruud
/s/ Louis S. Fisi Executive Vice President and Director July 7, 1998
- ------------------------------------------------
Louis S. Fisi
/s/ Nicholas R. Sucic Chief Financial Officer, Vice President July 7, 1998
- ------------------------------------------------ and Treasurer (Chief Accounting Officer)
Nicholas R. Sucic
/s/ Theodore A. Filson Director July 7, 1998
- ------------------------------------------------
Theodore A. Filson
/s/ Francis H. Beam Director July 7, 1998
- ------------------------------------------------
Francis H. Beam
/s/ Susuma Harada Director July 7, 1998
- ------------------------------------------------
Susuma Harada
/s/ A Gordon Tunstall Director July 7, 1998
- ------------------------------------------------
A Gordon Tunstall
/s/ John R. Buerkle Director July 7, 1998
- ------------------------------------------------
John R. Buerkle
</TABLE>
II-4
<PAGE> 36
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CLEVELAND, STATE OF OHIO,
ON JULY 7, 1998.
ADLT TRUST I
By: Advanced Lighting Technologies,
Inc.,
As Sponsor
By: /s/ Wayne R. Hellman
------------------------------------
Wayne R. Hellman
II-5
<PAGE> 37
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S> <C>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Articles of Incorporation of Advanced
Lighting Technologies, Inc. (incorporated by reference to
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the Quarterly Period ended December 31,1996)
3.2 Code of Regulations of Advanced Lighting Technologies, Inc.
(incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (no. 33-97902), effective
December 11, 1995)
4.1 Form of Indenture
4.2 Indenture, dated as of March 18, 1998, between The Company
and the Bank of New York (incorporated by reference to
Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q
for the Quarterly Period ended March 31, 1998)
4.3 Form of Senior Debt Security*
4.4 Form of Subordinated Debt Security*
4.5 Form of Convertible Debt Security*
4.6 Form of Preferred Stock Certificate of Designation*
4.7 Form of Warrant*
4.8 Form of Warrant Agreement*
4.9 Form of Deposit Agreement*
4.10 Declaration of Trust of ADLT Trust I
4.11 Form of Amended and Restated Declaration of Trust, including
form of Preferred Security of the Trust**
4.12 Form of Guarantee Agreement with respect to the Preferred
Securities of the Trust**
4.13 Form of 8% Senior Note due 2008
5.1 Opinion of Cowden, Humphrey & Sarlson Co., L.P.A. as to the
legality of the securities to be issued other than the
Preferred Securities of the Trust
5.2 Opinion of Brown & Wood LLP regarding certain matters
relating to New York law
5.3 Opinion of Potter Anderson & Corroon LLP as to the validity
of the Preferred Securities of the Trust**
12.1 Statement of Computation of Ratios of Advanced Lighting
Technologies, Inc.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cowden, Humphrey & Sarlson Co., L.P.A. (included
in Exhibit 5.1)
23.3 Consent of Brown & Wood LLP (included in Exhibit 5.2)
23.4 Consent of Potter Anderson & Corroon LLP (included in
Exhibit 5.3)**
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility with respect to the Debt
Securities*
25.2 Form T-1 Statement of Eligibility with respect to the Debt
Securities issuable under the Indenture dated as of March
18, 1998, between the Company and The Bank of New York
25.3 Form T-1 Statement of Eligibility with respect to the
Amended and Restated Declaration of Trust*
25.4 Form T-1 Statement of Eligibility with respect to the
Preferred Securities Guarantee*
</TABLE>
- ---------------
* To be filed with a Current Report on Form 8-K or a Post-Effective Amendment
to Registration Statement
** To be filed by Pre-Effective Amendment
<PAGE> 1
Exhibit 4.1
ADVANCED LIGHTING TECHNOLOGIES, INC.
Issuer
to
Trustee
---------------
INDENTURE
---------------
Dated as of
Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C>
ss.310(a)(1)......................................................................................... 607
(a)(2)............................................................................................ 607
(b)............................................................................................... 608
ss.312(a)............................................................................................ 701
(b)............................................................................................... 702
(c)............................................................................................... 702
ss.313(a)............................................................................................ 703
(b)(2)............................................................................................ 703
(c)............................................................................................... 703
(d)............................................................................................... 703
ss.314(a)............................................................................................ 704
(c)(1)............................................................................................ 102
(c)(2)............................................................................................ 102
(e)............................................................................................... 102
(f)............................................................................................... 102
ss.316(a) (last sentence)............................................................................ 101
(a)(1)(A).........................................................................................502, 512
(a)(1)(B)......................................................................................... 513
(b)............................................................................................... 508
ss.317(a)(1)......................................................................................... 503
(a)(2)............................................................................................ 504
(b)............................................................................................... 1003
ss.318(a)............................................................................................ 108
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 are a part of and govern every qualified indenture,
whether or not physically contained herein.
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
Section 1.1. Definitions.......................................................................2
Section 1.2. Compliance Certificates and Opinions.............................................10
Section 1.3. Form of Documents Delivered to Trustee...........................................10
Section 1.4. Acts of Holders..................................................................11
Section 1.5. Notices, etc.to Trustee and Company..............................................13
Section 1.6. Notice to Holders of Securities; Waiver..........................................13
Section 1.7. Language of Notices..............................................................14
Section 1.8. Conflict with Trust Indenture Act................................................14
Section 1.9. Effect of Headings and Table of Contents.........................................14
Section 1.10. Successors and Assigns...........................................................14
Section 1.11. Separability Clause..............................................................15
Section 1.12. Benefits of Indenture............................................................15
Section 1.13. Governing Law....................................................................15
Section 1.14. Legal Holidays...................................................................15
Section 1.15. Counterparts.....................................................................15
Section 1.16. Judgment Currency................................................................15
Section 1.17. Limitation on Individual Liability...............................................16
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally..................................................................16
Section 2.2. Form of Trustee's Certificate of Authentication..................................17
Section 2.3. Securities in Global Form........................................................17
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.............................................18
Section 3.2. Currency; Denominations..........................................................22
Section 3.3. Execution, Authentication, Delivery and Dating...................................22
Section 3.4. Temporary Securities.............................................................24
Section 3.5. Registration, Transfer and Exchange..............................................24
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.................................28
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 3.7. Payment of Interest and Certain Additional Amounts;Rights
to Interest and Certain Additional Amounts Preserved.............................29
Section 3.8. Persons Deemed Owners............................................................30
Section 3.9. Cancellation.....................................................................31
Section 3.10. Computation of Interest..........................................................31
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.......................................................31
Section 4.2. Defeasance and Covenant Defeasance...............................................33
Section 4.3. Application of Trust Money.......................................................36
ARTICLE 5
REMEDIES
Section 5.1. Events of Default................................................................37
Section 5.2. Acceleration of Maturity; Rescission and Annulment...............................38
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee..................39
Section 5.4. Trustee May File Proofs of Claim.................................................40
Section 5.5. Trustee May Enforce Claims without Possession of Securities
or Coupons......................................................................41
Section 5.6. Application of Money Collected...................................................41
Section 5.7. Limitations on Suits.............................................................41
Section 5.8. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts....................................42
Section 5.9. Restoration of Rights and Remedies...............................................42
Section 5.10. Rights and Remedies Cumulative...................................................43
Section 5.11. Delay or Omission Not Waiver.....................................................43
Section 5.12. Control by Holders of Securities.................................................43
Section 5.13. Waiver of Past Defaults..........................................................43
Section 5.14. Waiver of Usury, Stay or Extension Laws..........................................44
Section 5.15. Undertaking for Costs............................................................44
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee........................................................45
Section 6.2. Notice of Defaults...............................................................46
Section 6.3. Not Responsible for Recitals or Issuance of Securities...........................46
Section 6.4. May Hold Securities..............................................................47
Section 6.5. Money Held in Trust..............................................................47
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 6.6. Compensation and Reimbursement...................................................47
Section 6.7. Corporate Trustee Required; Eligibility..........................................48
Section 6.8. Resignation and Removal; Appointment of Successor................................48
Section 6.9. Acceptance of Appointment by Successor...........................................50
Section 6.10. Merger, Conversion, Consolidation or Succession to Business......................51
Section 6.11. Appointment of Authenticating Agent..............................................51
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders........................53
Section 7.2. Preservation of Information; Communications to Holders...........................53
Section 7.3. Reports by Trustee...............................................................53
Section 7.4. Reports by Company...............................................................54
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc, Only on Certain Terms..............................54
Section 8.2. Successor Person Substituted for Company.........................................55
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders...............................56
Section 9.2. Supplemental Indentures with Consent of Holders..................................57
Section 9.3. Execution of Supplemental Indentures.............................................58
Section 9.4. Effect of Supplemental Indentures................................................58
Section 9.5. Reference in Securities to Supplemental Indentures...............................59
Section 9.6. Conformity with Trust Indenture Act..............................................59
Section 9.7. Notice of Supplemental Indenture.................................................59
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts...............................................................59
Section 10.2. Maintenance of Office or Agency..................................................59
Section 10.3. Money for Securities Payments to Be Held in Trust................................61
Section 10.4. Additional Amounts...............................................................62
Section 10.5. Corporate Existence..............................................................63
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C> <C>
Section 10.6. Waiver of Certain Covenants......................................................63
Section 10.7. Company Statement as to Compliance; Notice of Certain Defaults...................63
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.........................................................64
Section 11.2. Election to Redeem; Notice to Trustee............................................64
Section 11.3. Selection by Trustee of Securities to be Redeemed................................64
Section 11.4. Notice of Redemption.............................................................65
Section 11.5. Deposit of Redemption Price......................................................66
Section 11.6. Securities Payable on Redemption Date............................................66
Section 11.7. Securities Redeemed in Part......................................................67
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.........................................................68
Section 12.2. Satisfaction of Sinking Fund Payments with Securities............................68
Section 12.3. Redemption of Securities for Sinking Fund........................................68
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.........................................................69
ARTICLE 14
[SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.........................................................69
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called........................................70
Section 15.2. Call, Notice and Place of Meetings...............................................70
Section 15.3. Persons Entitled to Vote at Meetings.............................................70
Section 15.4. Quorum; Action...................................................................71
</TABLE>
iv
<PAGE> 7
<TABLE>
<S> <C> <C>
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of Meetings..............71
Section 15.6. Counting Votes and Recording Action of Meetings..................................72
</TABLE>
v
<PAGE> 8
INDENTURE, dated as of ,1998 (the "Indenture"), between ADVANCED
LIGHTING TECHNOLOGIES, INC., a corporation duly organized and existing under the
laws of the State of Ohio (hereinafter called the "Company"), having its
principal executive office located at , 32000 Aurora Road, Solon, Ohio, and
, a banking association duly organized and existing under the laws of the
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness (hereinafter called the "Securities"),
unlimited as to principal amount, to bear such rates of interest, to mature at
such time or times, to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
1
<PAGE> 9
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States of America and, except as otherwise herein expressly provided,
the terms "generally accepted accounting principles" or "GAAP" with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the date
or time of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 1.4.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate
Securities of one or more series.
2
<PAGE> 10
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Authorized Officer" means, when used with respect to the Company, the
Chairman of the Board of Directors, a Vice Chairman, the President, any Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company.
"Bearer Security" means any Security in the form established
pursuant to Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any capital stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, a Vice Chairman, the President, Executive
Vice President, Senior Vice President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
3
<PAGE> 11
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at .
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from
time to time by the Council of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
4
<PAGE> 12
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness", with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property of,
or guaranteed by, such Person and computed in accordance with GAAP.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
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"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.4, includes such Additional
Amounts.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
"Legal Holidays" has the meaning specified in Section 1.14.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 10.2 or, to the
extent designated or required by Section 10.2 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by (a) (i) the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
(ii) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, or (b) by any two of the officers listed in clause (i)
that complies with the requirements of Section 314(e) of the Trust Indenture Act
and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 5.2.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
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(b) any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 4.2) with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities and any Coupons appertaining thereto, provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except to
the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
unless there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation
of the Company; and
(e) any such Security converted or exchanged as contemplated by
this Indenture into Common Stock or other securities, if the
terms of such Security provide for such conversion or exchange
pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making any such determination or
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so
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disregarded. Securities so owned which shall have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee (A) the pledgee's right so to act with respect to such Securities and
(B) that the pledgee is not the Company or any other obligor upon the Securities
or any Coupons appertaining thereto or an Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 2.1 which is registered in a Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and
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delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities", with
respect to any such Person, shall mean Securities authenticated and delivered
under this Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the voting power of the shares of its
Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent
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required by applicable law or regulation, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, if so provided with respect to
any Security, any successor to such Person. If at any time there is more than
one such Person, "U.S. Depository" or "Depository" shall mean, with respect to
any Securities, the qualifying entity which has been appointed with respect to
such Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President."
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Corporation
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such a certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion or each such individual,
such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the
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opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe, and does
not believe, that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company provided that such counsel, after reasonable inquiry, has no
reason to believe, and does not believe, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depository
that is a Holder of a global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to
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this Indenture to be made, given or taken by Holders, and a U.S. Depository that
is a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other Act, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice, consent,
waiver or other Act shall be valid or effective if made, given or taken more
than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, (2) such Bearer Security is produced to
the Trustee by some other Person, (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand,
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authorization, direction, notice, consent, waiver or other Act. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Treasurer at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each Holder
of a Registered Security affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of New
York and, if such Securities are then listed on any stock exchange outside the
United States, in an Authorized Newspaper in such city as the Company shall
advise the Trustee that such stock exchange so requires, on a Business Day
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at least twice, the first such publication to be not earlier than the earliest
date and the second such publication not later than the latest date prescribed
for the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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Section 1.11. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
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 1.12. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and any Authenticating Agent and their respective
successors hereunder and the Holders of Securities or Coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
Section 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to such next
succeeding Business Day.
Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 1.16. Judgment Currency.
The Company agrees, 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 in respect of the principal of, or
premium or interest, if any, or Additional Amounts 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
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accordance with normal banking procedures the Trustee could purchase in The City
of New York the requisite amount of the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (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 in respect of 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 or a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to be closed.
Section 1.17. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers or directors, as such, of the Company, or
any of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Indenture or in any Security or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, shareholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any Security or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Security.
ARTICLE 2
SECURITIES FORMS
Section 2.1. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other
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marks of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Security or
Coupon as evidenced by their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
NAME OF TRUSTEE,
as Trustee
By
--------------------------------
Authorized Officer
Section 2.3. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
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accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 3.1.
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.5 or 11.7,
upon repayment in part of any Registered Security of such series pursuant to
Article Thirteen, upon surrender in part of any Registered Security for
conversion into Common Stock or exchange for other securities pursuant to its
terms, or pursuant to or as contemplated by the terms of such Securities);
(3) if such Securities are to be issuable as Registered Securities, as
Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with Coupons,
without Coupons or both, and any restrictions applicable to the offer, sale or
delivery of the Bearer Securities and the terms, if any, upon which Bearer
Securities may be exchanged for Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether such
Securities are to be issued in
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temporary or permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for Securities
of the same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may occur, if
other than in the manner specified in Section 3.5, and (iii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to such
global Security;
(5) if any of such Securities are to be issuable as Bearer Securities
or in global form, the date as of which any such Bearer Security or global
Security shall be dated (if other than the date of original issuance of the
first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security in
global form payable in respect of an Interest Payment Date therefor prior to the
exchange, if any, of such temporary Bearer Security for definitive Securities
shall be paid to any clearing organization with respect to the portion of such
temporary Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of and premium, if
any, on such Securities is payable;
(8) the rate or rates at which such Securities shall bear interest, if
any, or the method or methods, if any, by which such rate or rates are to be
determined, the date or dates, if any, from which such interest shall accrue or
the method or methods, if any, by which such date or dates are to be determined,
the Interest Payment Dates, if any, on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on Registered
Securities on any Interest Payment Date, whether and under what circumstances
Additional Amounts on such Securities or any of them shall be payable, the
notice, if any, to Holders regarding the determination of interest on a floating
rate Security and the manner of giving such notice, and the basis upon which
interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(9) if in addition to or other than the Borough of Manhattan, The City
of New York, the place or places where the principal of, any premium and
interest on or any Additional Amounts with respect to such Securities shall be
payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such Securities may
be surrendered for conversion or exchange and notices or demands to or upon the
Company in respect of such Securities and this Indenture may be served, the
extent to which, or the manner in which, any interest payment or Additional
Amounts on a global Security on an Interest Payment Date, will be paid and the
manner in which any principal of or premium, if any, on any global Security will
be paid;
(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or periods
within which, the price or prices at which and the other terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the option
of the Company;
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(11) whether the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the option
of any Holder thereof and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities shall be redeemed or purchased, in whole
or in part, pursuant to such obligation, and any provisions for the remarketing
of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of $1,000
and any integral multiple thereof, and the denominations in which any of such
Securities that are Bearer Securities shall be issuable if other than the
denomination of $5,000;
(13) whether the Securities of the series will be convertible into
shares of Common Stock and/or exchangeable for other securities, and if so, the
terms and conditions upon which such Securities will be so convertible or
exchangeable, and any deletions from or modifications or additions to this
Indenture to permit or to facilitate the issuance of such convertible or
exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or
the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Company or a Holder thereof or otherwise, in Dollars or in a
Foreign Currency other than that in which such Securities are stated to be
payable, the date or dates on which, the period or periods within which, and the
other terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such Securities or
any of them are to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide for or
to facilitate the issuance of Securities denominated or payable, at the election
of the Company or a Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may be
determined with reference to an index, formula or other method or methods (which
index, formula or method or methods may be based, without limitation, on
Dollars, one or more Foreign Currencies, commodities, equity securities, equity
indices or other indices), and, if so, the terms and conditions upon which and
the manner in which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to any of such Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
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(19) whether either or both of Section 4.2(2) relating to defeasance or
Section 4.2(3) relating to covenant defeasance shall be applicable to the
Securities of such series, or any covenants in addition to those specified in
Section 4.2(3) relating to the Securities of such series which shall be subject
to covenant of defeasance, and any deletions from, or modifications or additions
to, the provisions of Article Four in respect of the Securities of such series;
(20) whether any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form and terms of
such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying Agent
or Authenticating Agent with respect to such Securities; and
(23) the terms and conditions, if any, upon which the payment of
Securities of such series shall be subordinated to other indebtedness of the
Company (including, without limitation, the indebtedness which ranks senior to
such Securities; restrictions on payments to holders of such Securities while a
default with respect to such senior indebtedness is continuing; restrictions, if
any, on payments to the holders of such securities following an event of
default; and any requirements for holders of such Securities to remit certain
payments to the holders of such senior indebtedness); and
(24) any other terms of such Securities and any other deletions from or
modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
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If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested by
its Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Company by the Treasurer or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or any Coupons
appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities and Coupons or did not hold such offices at the date
of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if any,
have been established in conformity with the provisions of this Indenture;
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(b) all conditions precedent to the authentication and delivery of such
Securities and Coupons, if any, appertaining thereto, have been complied with
and that such Securities, and Coupons, when completed by appropriate insertions,
executed under the Company's corporate seal and attested by duly authorized
officers of the Company, delivered by duly authorized officers of the Company to
the Trustee for authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute legally
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be subject to or
limited by bankruptcy, insolvency, reorganization, moratorium, arrangement,
fraudulent conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and will entitle the Holders thereof to the benefits of this Indenture;
such Opinion of Counsel need express no opinion as to the availability of
equitable remedies;
(c) all laws and requirements in respect of the execution and delivery
by the Company of such Securities and Coupons, if any, have been complied with;
(d) this Indenture has been qualified under the Trust Indenture Act;
and
(2) an Officers' Certificate stating that all conditions precedent to
the execution, authentication and delivery of such Securities and Coupons, if
any, appertaining thereto, have been complied with and that, to the best
knowledge of the Persons executing such certificate, no event which is, or after
notice or lapse of time would become, an Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
that the Trustee authenticate and deliver Securities of such series for original
issue will be deemed to be a certification by the Company that all conditions
precedent provided for in this Indenture relating to authentication and delivery
of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a
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certificate of authentication substantially in the form provided for in Section
2.2 or 6.11 executed by or on behalf of the Trustee or by the Authenticating
Agent by the manual signature of one of its authorized officers. Such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons appertaining
thereto then matured have been detached and cancelled.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for
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<PAGE> 32
each series of Securities. The Company shall have the right to remove and
replace from time to time the Security Registrar for any series of Securities;
provided that no such removal or replacement shall be effective until a
successor Security Registrar with respect to such series of Securities shall
have been appointed by the Company and shall have accepted such appointment by
the Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 10.2, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date and before the opening of business at such
Office or Agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the
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Coupon relating to such Interest Payment Date or proposed date of payment, as
the case may be (or, if such Coupon is so surrendered with such Bearer Security,
such Coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the U.S. Depository or such other Depository as shall be
specified in the Company Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depository or such other
Depository, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officers' Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described above
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the form
in which the Securities are issuable, as provided in or pursuant to this
Indenture) shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof, but subject to the satisfaction of any certification or other
requirements to the issuance of Bearer Securities;
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provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of like tenor and
the same series under Section 11.3 and ending at the close of business on the
day of such selection, (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for
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repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.06, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
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The provisions of this Section 3.6, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
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 or Coupons.
Section 3.7. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor Security
thereof) shall be registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed by the Company
in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on such Registered Security,
the Special Record Date therefor and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when so deposited to
be held in trust for the benefit of the Person entitled to such Defaulted
Interest as in this Clause provided. The Special Record Date for the payment of
such Defaulted Interest shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
notification to the Trustee of the proposed payment. The Trustee shall in the
name and at the expense of the Company cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
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(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which such Security may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into shares of Common Stock or exchangeable for other securities,
which Registered Security is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted or exchanged, interest with
respect to which the Stated Maturity is after the date of conversion or exchange
of such Registered Security shall not be payable.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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No Holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 3.9. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such exchange whose
surrender is not required or has been waived as provided in Section 3.5, (ii)
Securities and Coupons of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6, (iii) Coupons
appertaining to Securities of such
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series called for redemption and maturing after the relevant Redemption Date
whose surrender has been waived as provided in Section 11.7, and (iv) Securities
and Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
10.3) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, any Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, 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 Company, and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire indebtedness on
such Securities and any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation, including the principal of, any premium and
interest on, and any Additional Amounts with respect to such Securities and any
Coupons appertaining thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity thereof, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section (b)), and with respect to any rights to
convert or exchange such Securities into Common Stock or other securities shall
survive.
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Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 4.2 shall
not be applicable with respect to the Securities of such series or (ii) covenant
defeasance of the Securities of or within a series under clause (3) of this
Section 4.2 shall not be applicable with respect to the Securities of such
series, then such provisions, together with the other provisions of this Section
4.2 (with such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 4.2(2) or Section 4.2(3) be applied
to such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable to this
Section 4.2(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 4.2 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 4.2 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 4.2
and as more fully set forth in such clause, payments in respect of the principal
of (and premium, if any) and interest, if any, on, and Additional Amounts, if
any, with respect to, such Securities and any Coupons appertaining thereto when
such payments are due, and any rights of such Holder to convert such Securities
into Common Stock or exchange such Securities for other securities, (ii) the
obligations of the Company and the Trustee with respect to such Securities under
Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to
the extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to
Section 4.2(4)(a) below), and with respect to any rights to convert such
Securities into Common Stock or exchange such Securities for other securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 4.2. The Company may exercise its option under this
Section 4.2(2) notwithstanding the prior exercise of its option under clause (3)
of this Section 4.2 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the option to have this Section
4.2(3) apply with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 10.5 and 10.6, and, to the
extent specified pursuant to Section 3.1(19), any other covenant applicable to
such Securities, with respect to such Outstanding Securities and
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any Coupons appertaining thereto on and after the date the conditions set forth
in clause (4) of this Section 4.2 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
Coupons appertaining thereto, the Company may omit to comply with, and shall
have no liability in respect of, any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section 5.1(4) or
5.1(8) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and Coupons appertaining thereto
shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2)
or (3) of this Section 4.2 to any Outstanding Securities of or within a series
and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.7 who shall agree to comply with the provisions of this Section 4.2
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any Coupons appertaining
thereto, (1) an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified as payable at
Stated Maturity, or (2) Government Obligations applicable to such Securities and
Coupons appertaining thereto (determined on the basis of the Currency in which
such Securities and Coupons appertaining thereto are then specified as payable
at Stated Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any Coupons
appertaining thereto, money in an amount, or (3) a combination thereof, in any
case, in an amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on such Outstanding
Securities and any Coupons appertaining thereto at the Stated Maturity of such
principal or installment of principal or premium or interest and (z) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any Coupons appertaining thereto on the days on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound.
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(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
Coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit and, with respect to defeasance only, at any time during the
period ending on the 123rd day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under clause (2) of this Section 4.2,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from the Internal Revenue Service a letter
ruling, or there has been published by the Internal Revenue Service a Revenue
Ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under clause (3) of this Section 4.02,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, after the 123rd day after the date of deposit, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited or caused to be
deposited with the Trustee (or other qualifying trustee) pursuant to this clause
(4) to be held in trust will not be subject to any case or proceeding (whether
voluntary or involuntary) in respect of the Company under any Federal or State
bankruptcy, insolvency, reorganization or other similar law, or any decree or
order for relief in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance under clause (2) or (3) of
this Section 4.2 (as the case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 4.2(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.1 or
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the terms of such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 4.2(4)(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in
which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities, and any
Coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts,
if any; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
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ARTICLE 5
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of such
series, or any Additional Amounts payable with respect thereto, when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of such series or any Additional Amounts payable with respect thereto,
when such principal or premium becomes or such Additional Amounts become due and
payable at their Maturity; or
(3) default in the deposit of any sinking fund payment when and as due
by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or the Securities (other than a covenant or
warranty a default in the performance or the breach of which is elsewhere in
this Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company, whether such Indebtedness now exists
or shall hereafter be created, shall happen and shall result in such
Indebtedness in principal amount in excess of $10,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise become
due and payable, and such acceleration shall not be rescinded or annulled, or
such Indebtedness shall not have been discharged, within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such event of default and requiring the Company to
cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
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(6) the Company shall fail within 30 days to pay, bond or otherwise
discharge any uninsured judgment or court order for the payment of money in
excess of $10,000,000, which is not stayed on appeal or is not otherwise being
appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company to be insolvent, or
approving a petition seeking reorganization, arrangement, adjustment or
composition of the Company and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian, receiver,
liquidator, assignee, trustee or other similar official of the Company or of any
substantial part of the property of the Company, as the case may be, or ordering
the winding up or liquidation of the affairs of the Company; or
(8) the commencement by the Company of a voluntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or of a
voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Company to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings against it, or
the filing by the Company of a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition of the Company or relief
under any applicable law, or the consent by the Company to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or similar official of the Company or any
substantial part of the property of the Company or the making by the Company of
an assignment for the benefit of creditors, or the taking of corporate action by
the Company in furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (7) or (8)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount
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as may be provided for in the Securities of such series) shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series and any Coupon
appertaining thereto,
(b) the principal of and any premium on any Securities of such
series which have become due otherwise than by such declaration of acceleration
and interest thereon and any Additional Amounts with respect thereto at the rate
or rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue installments of any interest and
Additional Amounts at the rate or rates borne by or provided for in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 6.6;
and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest on, and
any Additional Amounts with respect to Securities of such series which shall
have become due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on or
any Additional Amounts with respect to any Security or any Coupon appertaining
thereto when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium
on any Security or any Additional Amounts with respect thereto at their
Maturity,
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the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money 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 and all other
amounts due to the Trustee under Section 6.6.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 5.4. 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 Company or any other obligor upon the
Securities of any series or the property of the Company or 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 Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of any applicable series, of the
principal and any premium, interest and Additional Amounts owing and unpaid in
respect of the Securities and any Coupons appertaining thereto 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 or counsel) and
of the Holders of Securities or any Coupons appertaining thereto allowed in such
judicial proceeding, and
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(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons 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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article 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 any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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Section 5.7. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such indemnity
as is reasonably satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice the
rights of any other such Holders or Holders of Securities of any other series,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or
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abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee and each such
Holder shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and each such Holder shall continue as
though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall 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 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon 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
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities.
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 and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the other
Holders of Securities of such series not joining in such action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
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(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security of such series or any
Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.15. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 5.15 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
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ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) 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, bond,
debenture, note, coupon or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each case,
other than delivery of any Security, together with any Coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to Section 3.3
which shall be sufficiently evidenced as provided therein) and any resolution of
the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the request or
direction of any of the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture, unless such Holders shall have
offered to the Trustee such security or indemnity as is reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document, but the Trustee, in its discretion, may but
shall not be obligated to make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine, during
business hours and upon reasonable notice, the books, records and premises of
the Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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(8) the Trustee shall not be liable for any action taken or error of
judgment made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent, acted in
bad faith or engaged in willful misconduct.
(9) the Authenticating Agent, Paying Agent, and Security Registrar
shall have the same protections as the Trustee set forth hereunder; and
(10) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with an Act of
the Holders hereunder, and, to the extent not so provided herein, with respect
to any act requiring the Trustee to exercise its own discretion, relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture or any Securities, unless it shall be proved that, in connection
with any such action taken, suffered or omitted or any such act, the Trustee was
negligent, acted in bad faith or engaged in willful misconduct.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment with respect to, any
Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the best interest of
the Holders of Securities and Coupons of such series; and provided, further,
that in the case of any default of the character specified in Section 5.15
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
Section 6.3. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
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Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.6. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by the Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture or arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the
Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers, directors and
employees for, and to hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is intended
to constitute an expense of
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administration under any then applicable bankruptcy or insolvency law. "Trustee"
for purposes of this Section 6.6 shall include any predecessor Trustee but the
negligence or bad faith of any Trustee shall not affect the rights of any other
Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, that is eligible under
Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000 and that is subject to supervision or
examination by Federal or state authority. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
[(2).....The following indenture[s] shall be considered
specifically described herein for purposes of clause (i) of the proviso
contained in Section 310(b)(1) of the Trust Indenture Act: Indenture dated as of
March 18, 1997 between The Company and The Bank of New York, as trustee; and
pursuant to Section 310(b)(1)(C)(i) of the Trust Indenture Act, unless otherwise
ordered by the Commission, an Event of Default by the Company under this
Indenture will not disqualify the Trustee under this Indenture because it is a
trustee under such other indenture.]
Section 6.8. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 6.9.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.9 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or any
Holder of a Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
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(b) the Trustee shall cease to be eligible under Section 6.7 and shall
fail to resign after written request therefor by the Company or any such Holder,
or
(c) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of such series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.9. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.9, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 6.9, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
(7) In no event shall any retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
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Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties hereunder of the retiring Trustee; but, on the request
of the Company or such successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and,
subject to Section 10.3, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
6.6.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to 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, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates and subject to Section 10.3 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, subject to its claim,
if any, provided for in Section 6.6.
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(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (1) or (2) of this Section, as the
case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 6.10. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating
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Agent, shall be the successor of such Authenticating Agent hereunder, provided
such Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By
----------------------------------
as Authenticating Agent
By
----------------------------------
Authorized Officer
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If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later
than ____ and ____ of the year or upon such other dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto authorizing
such series, a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing with the
first September 15 following the first issuance of Securities pursuant to
Section 3.1, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of
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the Trust Indenture Act, a brief report dated as of such September 15 with
respect to any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding September 15 and the date
of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 7.4. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company,
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
(whether or not affiliated with the Company), or convey, transfer or lease its
property and assets as an entirety or substantially as an entirety, to any other
Person (whether or not affiliated with the Company); and
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the Company shall not permit any other Person (whether or not affiliated with
the Company) to consolidate with or merge into the Company or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company as an entirety or substantially as an entirety shall be a Corporation
organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by an indenture
(or indentures, if at such time there is more than one Trustee) supplemental
hereto, executed by the successor Person and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
any premium and interest on and any Additional Amounts with respect to all the
Securities and the performance of every obligation in this Indenture and the
Outstanding Securities on the part of the Company to be performed or observed
and shall provide for conversion or exchange rights in accordance with the
provisions of the Securities of any series that are convertible or exchangeable
into Common Stock or other securities;
(2) immediately after giving effect to such transaction, and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default or event which,
after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 8.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and thereafter, except in
the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company contained
herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Company;
(3) to add to or change any of the provisions of this Indenture to
facilitate the issuance of Bearer Securities or to provide that Bearer
Securities may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal of, any premium or interest on or any
Additional Amounts with respect to Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities to be
exchanged for Bearer Securities of other authorized denominations or to permit
or facilitate the issuance of Securities in uncertificated form, provided any
such action shall not adversely affect the interests of the Holders of
Outstanding Securities of any series or any Coupons appertaining thereto in any
material respect;
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Section 3.1;
(5) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.09;
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons appertaining
thereto in any material respect;
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth;
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(8) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture);
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of an Outstanding
Holder of a Security of such series and any Coupons appertaining thereto or any
other Outstanding Security or Coupon in any material respect;
(10) to secure the Securities pursuant to Section 10.5, 10.6 or
otherwise;
(11) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series;
(12) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities then
Outstanding; or
(13) to amend or supplement any provision contained herein, provided
that such amendment or supplement does not apply to any outstanding Securities
issued prior to the date of such amendment or supplement and entitled to the
benefits of such provision.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture or of the Securities of such series; provided, however,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional Amounts
pursuant to Section 10.4 (except as contemplated by Section 8.1(1) and permitted
by Section 9.1(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 or the amount
thereof provable in bankruptcy pursuant to Section 5.4, change the redemption
provisions or adversely affect the right of repayment at the option of any
Holder as contemplated by Article Thirteen, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof
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(or, in the case of redemption, on or after the Redemption Date or, in the case
of repayment at the option of the Holder, on or after the date for repayment),
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 15.4 for quorum or voting,
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.8, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby,
(4) make any change that adversely affects the right to convert or
exchange any Security into or for Common Stock or other securities in accordance
with its terms, or
(5) in the case of Securities subject to subordination provisions,
modify any provisions relating to such subordination in a manner adverse to the
holders of Securities subject to such subordination provisions. A supplemental
indenture which changes or eliminates any covenant or other provision of this
Indenture which shall have been included expressly and solely for the benefit of
one or more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) 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 and an
Officer's Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this
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Indenture for all purposes; and every Holder of a Security theretofore or
thereafter authenticated and delivered hereunder and of any Coupon appertaining
thereto shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 9.6. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 10.2 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture
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may be served. If Securities of a series are issuable as Bearer Securities, the
Company shall maintain, subject to any laws or regulations applicable thereto,
an Office or Agency in a Place of Payment for such series which is located
outside the United States where Securities of such series and any Coupons
appertaining thereto may be presented and surrendered for payment; provided,
however, that if the Securities of such series are listed on The Stock Exchange
of the United Kingdom and the Republic of Ireland or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company shall maintain a Paying Agent in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such Office or Agency. If at any
time the Company shall fail to maintain any such required Office or Agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of such series and any
Coupons appertaining thereto may be presented and surrendered for payment at the
place specified for the purpose with respect to such Securities as provided in
or pursuant to this Indenture, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company in the Borough of Manhattan, The City of New York for such purpose.
The Company may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be
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payable in a Foreign Currency, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one exchange rate agent.
Section 10.3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, any premium or interest on or any Additional Amounts with respect to
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
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Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the
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amount, if any, required to be withheld on such payments to such Holders of
Securities or Coupons, and the Company agrees to pay to the Trustee or such
Paying Agent the Additional Amounts required by the terms of such Securities.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
Section 10.5 Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and its rights (charter and statutory) and franchises; provided,
however, that the foregoing shall not obligate the Company to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to any Holder.
Section 10.6. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
Section 10.7. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(a) a review of the activities of the Company during such year and of
its performance under this Indenture has been made under his or her supervision,
and
(b) to the best of his or her knowledge, based on such review, (a) the
Company has complied with all the conditions and covenants imposed on it under
this Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and status
thereof.
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(2) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default
pursuant to clause (4) of Section 5.1.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into Common Stock or exchanged for other securities in part before
termination of the conversion or exchange right with respect to the
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portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due
and payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted
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from the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and no
Registered Securities of such series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 3.5 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or exchangeable for other securities, the
conversion or exchange price or rate, the date or dates on which the right to
convert or exchange the principal of the Securities of such series to be
redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 3.1 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the
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Redemption Date shall be payable only upon presentation and surrender of Coupons
for such interest (at an Office or Agency located outside the United States
except as otherwise provided in Section 10.2), and provided, further, that,
except as otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor
according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
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ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein 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 12.2. 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 and this Indenture.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of 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. If, as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
12.2, the principal amount of Securities of such series to be redeemed in order
to satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next
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5
<PAGE> 76
ensuing mandatory sinking fund payment for that series pursuant to the terms of
that series, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that series pursuant to Section 12.2, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to be
so credited and not theretofore delivered. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 60 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 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.3. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 13.1, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained
69
<PAGE> 77
for such amount on such reasonable basis of exchange and as of the record date
with respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 15.1, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 15.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 1.6) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (1) of this Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at
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<PAGE> 78
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4 to
certify to the
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<PAGE> 79
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 1.4 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.2(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
72
<PAGE> 80
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
73
<PAGE> 81
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] ADVANCED LIGHTING TECHNOLOGIES, INC.
Attest:
By
---------------------------------------
Name:
Title:
[SEAL] [NAME OF TRUSTEE],
as Trustee
Attest:
By
----------------------------------------
Name:
Title:
74
<PAGE> 82
STATE OF _________)
: ss.:
COUNTY OF ________)
On the _____ day of _________, 199_, before me personally came _______
________, to me known, who, being by me duly sworn, did depose and say that he
is a _____________ of ADVANCED LIGHTING TECHNOLOGIES, INC., an Ohio corporation,
one of the persons described in and who executed the foregoing instrument; that
he knows the seal of said Corporation; that the seal affixed to said instrument
is such Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
---------------------------------------------
Notary Public
[NOTARIAL SEAL]
75
<PAGE> 83
STATE OF ________)
: ss.:
COUNTY OF ________)
On the _____ day of _________, 199_, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of [NAME OF TRUSTEE], a banking association organized
and existing under the laws of TRUSTEE'S JURISDICTION, one of the persons
described in and who executed the foregoing instrument; that he knows the seal
of said Corporation; that the seal affixed to said instrument is such
Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
---------------------------------------------
Notary Public
[NOTARIAL SEAL]
76
<PAGE> 1
Exhibit 4.10
DECLARATION OF TRUST
OF
ADLT TRUST I
DECLARATION OF TRUST, dated as of June 1, 1998, between Advanced
Lighting Technologies, Inc., an Ohio corporation, as sponsor (the "Sponsor"),
and Marc Ferruci, not in his individual capacity but solely as trustee (the
"Delaware Trustee"). The Sponsor and the Delaware Trustee hereby agree as
follows:
1. The trust created hereby shall be known as ADLT Trust I (the
"Trust").
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of ten dollars ($10), which amount shall constitute the initial
trust estate. The Delaware Trustee hereby declares that he will hold the trust
estate in trust for the Sponsor. It is the intention of the parties hereto that
the Trust created hereby constitute a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Delaware Trustee is hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Sponsor, the Delaware Trustee, and certain other trustees named
therein will enter into an amended and restated Declaration of Trust,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below) at the time
such registration statement becomes effective under the Securities Act of 1933,
as amended (the "Securities Act"), to provide for the contemplated operation of
the Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Delaware Trustee shall not have
any duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. During such period, and except to the extent
applicable law may otherwise require, the management of the affairs of the Trust
shall be vested exclusively in the Sponsor.
4. The Sponsor and the Delaware Trustee hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement, and any related registration
statement filed pursuant to Rule 462(b) under the Securities Act (the Rule
462(b) Registration Statement) relating to the registration of the Preferred
Securities under the Securities Act and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement") (including any pre-effective or
post-effective amendments thereto) relating to the registration of the
Preferred Securities under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to prepare and file with any national securities
exchange or automated quotation system and execute, in each case on behalf of
the Trust, a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any
<PAGE> 2
national securities exchange or quoted on any automated quotation system; (iii)
to prepare and file and execute, in each case on behalf of the Trust, such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "blue sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; and (iv) to negotiate the terms of, and execute
on behalf of the Trust, a purchase agreement among the Trust, the Sponsor and
any underwriter, dealer or agent relating to the Preferred Securities,
substantially in the form included as an exhibit to the 1933 Act Registration
Statement at the time it becomes effective under the Securities Act. In the
event that any filing referred to in any of clauses (i)-(iii) above is required
by the rules and regulations of the Commission, any national securities
exchange, automated quotation system or state securities or blue sky laws, to be
executed on behalf of the Trust by the Delaware Trustee, the Delaware Trustee is
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Delaware Trustee in his capacity as a Trustee of the Trust, shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission or any
national securities exchange, automated quotation system or state securities or
blue sky laws. In connection with all of the foregoing, the Sponsor and the
Delaware Trustee, solely in his capacity as Trustee of the Trust, may constitute
and appoint lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for the Sponsor or such Delaware Trustee and in
the Sponsor's or such Trustee's name, place and stead, in any and all
capacities, to sign and file (i) any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement with all exhibits thereto, and other documents in
connection therewith, and (ii) the Rule 462(b) Registration Statement and any
and all amendments thereto filed pursuant to Rule 462(b) under the Securities
Act with the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his or her substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The Delaware Trustee shall initially be the only trustees of the
Trust. Thereafter, the Sponsor may increase or decrease (but not below one) the
number of trustees of the Trust by executing a written instrument fixing such
number, which instrument may be the amended and restated Delcaration referred to
in paragraph 3; PROVIDED, HOWEVER, that so long as it is required by the
Business Trust Act, one trustee of the Trust shall be either a natural person
who is a resident of the State of Delaware or an entity other than a natural
person that has its principal place of business in the State of Delaware and
that, in either case, otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Sponsor is entitled to appoint or remove
without cause any trustee at any time. The Delaware Trustee may resign upon
thirty days' prior written notice to the Sponsor.
7. The Delaware Trustee, in his capacity as trustee, shall not have any
of the powers or duties of the Sponsor set forth herein and shall, except to the
extent otherwise required by
<PAGE> 3
applicable law, be a trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
Mark Ferucci,
not in his individual capacity
but solely as Delaware Trustee
/s/ Mark Ferucci
----------------------------------
ADVANCED LIGHTING TECHNOLOGIES,
INC.,
as Sponsor
By: /s/ Wayne Hellman
----------------------------------
Name: Wayne Hellman
Title:
<PAGE> 1
Exhibit 4.13
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE.
<PAGE> 2
ADVANCED LIGHTING TECHNOLOGIES, INC.
8% Senior Notes due 2008
CUSIP
ADVANCED LIGHTING TECHNOLOGIES, INC., an Ohio corporation (the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to CEDE & CO., or its
registered assigns, the principal sum of ($) on March 15, 2008.
Interest Payment Dates: March 15 and September 15,
commencing .
Regular Record Dates: March 1 and September 1.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
ADVANCED LIGHTING TECHNOLOGIES,
INC.
By:
-----------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 8% Senior Notes due 2008 described in the within-mentioned
Indenture.
Date: , 1998 THE BANK OF NEW YORK
as Trustee
By:
------------------------------------------
Authorized Signatory
<PAGE> 4
4
[REVERSE SIDE OF NOTE]
ADVANCED LIGHTING TECHNOLOGIES, INC.
8% Senior Notes due 2008
1. PRINCIPAL AND INTEREST.
The Company will pay the principal of this Note on March 15, 2008.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from , 1998.
Interest will be computed on the basis of a 360-day year of twelve 30-day months
and, in the case of an incomplete month, the number of days elapsed based on a
30- day month.
The Company shall pay interest on overdue principal and premium, if
any, to the extent lawful, at a rate per annum that is 2% in excess of the rate
otherwise payable.
2. METHOD OF PAYMENT.
The Company will pay interest (except defaulted interest) on the
principal amount of this Note as provided above on each March 15 and September
15, commencing , 1998 to the persons who are Holders (as reflected in the
Security Register at the close of business on the March 1 or September 1 in each
case whether or not a Business Day, immediately preceding the related Interest
Payment Date), in each case, even if the Note is canceled on registration of
transfer or registration of exchange after such record date; provided that, with
respect to the payment of principal, the Company will make payment to the Holder
that surrenders this Note to a Paying Agent on or after the Maturity hereof.
The Company will pay principal, premium, if any, and as provided above,
interest in money of the United States that at the time of payment is legal
tender for payment of public and
<PAGE> 5
5
private debts. However, the Company may pay principal, premium, if any, and
interest by its check payable in such money. It may mail an interest check to a
Holder's registered address (as reflected in the Security Register). If a
payment date is a date other than a Business Day at a place of payment, payment
may be made at that place on the next succeeding day that is a Business Day and
no interest shall accrue for the intervening period.
3. PAYING AGENT AND REGISTRAR.
Initially, the Trustee will act as authenticating agent, Paying Agent
and Registrar. The Company may change any authenticating agent, Paying Agent or
Registrar without notice. The Company, any Subsidiary or any Affiliate of any of
them may act as Paying Agent, Registrar or co-Registrar.
4. INDENTURE; LIMITATIONS.
The Company issued the Notes under an Indenture dated as of March 18,
1998 (the "Indenture"), between the Company and The Bank of New York, trustee
(the "Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are general unsecured obligations of the Company.
The Company may, subject to Article Four of the Indenture and
applicable law, issue additional Notes under the Indenture.
<PAGE> 6
6
5. OPTIONAL REDEMPTION.
The Notes are redeemable, at the Company's option, in whole or in part,
at any time or from time to time, on or after March 15, 2003 and prior to
Maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address, as it appears in the Security
Register, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date that is prior to the Redemption Date to receive interest due on an Interest
Payment Date), if redeemed during the 12-month period commencing March 15 of the
years set forth below:
<TABLE>
<CAPTION>
Year Redempti
---- --------
on Price
--------
<S> <C>
2003.......................................... 104.000%
2004.......................................... 102.667
2005.......................................... 101.333
2006 and thereafter........................... 100.000
</TABLE>
At any time and from time to time prior to March 15, 2001, the Company
may redeem up to 35% of the principal amount of the Notes with the proceeds of
one or more Public Equity Offerings, at any time or from time to time in part,
at a Redemption Price (expressed as a percentage of principal amount) of 108%,
plus accrued and unpaid interest to the Redemption Date (subject to the rights
of Holders of record on the relevant Regular Record Date that is prior to the
Redemption Date to receive interest due on an Interest Payment Date); provided
that after any such redemption Notes representing at least 65% of the Notes
originally issued remain Outstanding and that notice of such redemption is
mailed within 60 days of the relevant Public Equity Offering.
Notes in original denominations larger than $1,000 may be redeemed in
part. On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
<PAGE> 7
7
6. REPURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of any Change of Control, each Holder shall have
the right to require the repurchase of its Notes by the Company in cash pursuant
to the offer described in the Indenture at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase (the "Payment Date").
A notice of such Change of Control will be mailed within 30 days after
any Change of Control occurs to each Holder at its last address as it appears in
the Security Register. Notes in original denominations larger than $1,000 may be
sold to the Company in part. On and after the Payment Date, interest ceases to
accrue on Notes or portions of Notes surrendered for purchase by the Company,
unless the Company defaults in the payment of the purchase price.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 of principal amount and multiples of $1,000 in excess thereof. A Holder
may register the transfer or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Notes selected for redemption. Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before the day of
mailing of a notice of redemption of Notes selected for redemption.
8. PERSONS DEEMED OWNERS.
A Holder shall be treated as the owner of a Note for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its written request. After that, Holders entitled
to the money must look to the Company for payment, unless an abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
<PAGE> 8
8
10. DISCHARGE PRIOR TO MATURITY.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Notes (a) to Maturity, the Company will be
discharged from the Indenture and the Notes, except in certain circumstances for
certain provisions thereof, and (b) to the Stated Maturity, the Company will be
discharged from certain covenants set forth in the Indenture.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then Outstanding, and any existing default or
compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then Outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries, among other things, to Incur additional
Indebtedness, make Restricted Payments, suffer to exist restrictions on the
ability of Restricted Subsidiaries to make certain payments to the Company,
issue Capital Stock of Restricted Subsidiaries, Guarantee Indebtedness of the
Company, engage in transactions with Affiliates, suffer to exist or incur Liens,
enter into sale-leaseback transactions, use the proceeds from Asset Sales, or
merge, consolidate or transfer substantially all of its assets. Within 45 days
after the end of each fiscal quarter (90 days after the end of the last fiscal
quarter of each year), the Company shall deliver to the Trustee an Officers'
Certificate stating whether or not the signers thereof know of any Default or
Event of Default under such restrictive covenants.
13. SUCCESSOR PERSONS.
<PAGE> 9
9
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. DEFAULTS AND REMEDIES.
Any of the following events constitutes an "Event of Default" under the
Indenture: (a) default in the payment of principal of (or premium, if any, on)
any Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise; (b) default in the payment of interest on any Note when
the same becomes due and payable, and such default continues for a period of 30
days; (c) default in the performance or breach of Article Five of the Indenture
or the failure to make or consummate an Offer to Purchase in accordance with
Section 4.11 or 4.12 of the Indenture; (d) default in the performance of or
breach of any covenant or agreement of the Company in the Indenture or under the
Notes (other than a default specified in clause (a), (b) or (c) above), and such
default or breach continues for a period of 30 consecutive days after written
notice by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then Outstanding; (e) there occurs with respect to any issue
or issues of Indebtedness of the Company or any Significant Subsidiary having an
outstanding principal amount of $10 million or more in the aggregate for all
such issues of all such Persons, whether such Indebtedness exists on the Closing
Date or shall hereafter be created, (I) an event of default that has caused the
holder thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the final
(but not any interim) fixed maturity and such defaulted payment shall not have
been made, waived or extended within 30 days of such payment default; (f) any
final judgment or order (not covered by insurance) for the payment of money in
excess of $10 million in the aggregate for all such final judgments or orders
against all such Persons (treating any deductibles, self-insurance or retention
as not so covered) shall be rendered against the Company or any Significant
Subsidiary and shall not be paid or discharged, and there shall be any period of
30 consecutive days following entry of the final judgment or order that causes
the aggregate amount for all such final judgments or orders outstanding and not
paid or discharged against all such Persons to exceed $10 million during which a
stay of enforcement of such final judgment or order, by reason of a pending
appeal or
<PAGE> 10
10
otherwise, shall not be in effect; (g) a court having jurisdiction in the
premises enters a decree or order for (A) relief in respect of the Company or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (B)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or (h) the Company or any Significant Subsidiary (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least 25%
in aggregate principal amount of the Notes then Outstanding shall, declare all
the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Company occurs and is continuing, the Notes automatically become
due and payable. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of at least a majority in principal amount of the Notes then Outstanding
may direct the Trustee in its exercise of any trust or power.
15. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
<PAGE> 11
11
16. NO RECOURSE AGAINST OTHERS.
No incorporator or any past, present or future partner, stockholder,
other equityholder, officer, director, employee or controlling person, as such,
of the Company or of any successor Person shall have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
17. AUTHENTICATION.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to Advanced Lighting
Technologies, Inc., 32000 East Aurora Road, Solon, OH 44139;
Attention: Nicholas R. Sucic.
19. GOVERNING LAW.
The Indenture and this Note shall be governed by the laws of the State
of New York excluding (to the greatest extent permissible by law) any rule of
law that would cause the application of the laws of any jurisdiction other than
the State of New York.
<PAGE> 12
12
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
INSERT TAXPAYER IDENTIFICATION NO.
_______________________________________________________________________________
_______________________________________________________________________________
Please print or typewrite name and address including zip code of
assignee
________________________________________________________________________________
________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing____________________________________________________
_____________________________ attorney to transfer said Note on
the books of the Company with full power of substitution in the
premises.
<PAGE> 13
13
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.11 or 4.12 of the Indenture, check the Box:
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.11 or 4.12 of the Indenture, state the amount:
$___________________.
Date:__________________________
Your Signature:
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee: ______________________________
<PAGE> 1
Exhibits 5.1
[COWDEN, HUMPHREY & SARLSON CO., L.P.A. LETTERHEAD]
July 7, 1998
Advanced Lighting Technologies, Inc
32000 Aurora Road
Solon, OH 44139
Ladies and Gentlemen:
We have acted as counsel to Advanced Lighting Technologies, Inc., an
Ohio corporation (the "Company"), in connection with the proposed issuance and
sale by the Company of up to $300,000,000 aggregate initial public offering
price of its (i) senior debt securities (the "Senior Debt Securities"), (ii)
subordinated debt securities (the "Subordinated Debt Securities", and together
with the Senior Debt Securities, the "Debt Securities"), (iii) the 8% Senior
Notes due 2008 in a maximum aggregate principal amount of $50,000,000 (the "8%
Notes"), (iv) shares of common stock, par value $.001 per share (the "Common
Stock"), (v) shares of preferred stock, par value $.001 per share (the
"Preferred Stock"), (vi) depositary shares (the "Depositary Shares")
representing shares of Preferred Stock, which Depositary Shares will be
evidenced by depositary receipts (the "Depositary Receipts") and (vii) warrants
to purchase Debt Securities, Common Stock or Preferred Stock (the "Warrants"),
and in connection with the proposed issuance by the Company of guarantees (the
"Guarantees") of up to $300,000,000 aggregate initial public offering price of
preferred securities (the "Preferred Securities") of ADLT Trust I, a Delaware
business trust (the "Trust"). The Debt Securities, the 8% Notes, the Common
Stock, the Preferred Stock, the Depositary Shares, the Warrants and the
Guarantees are hereinafter collectively referred to as the "Securities." The
Debt Securities will be issuable under an indenture (the "Indenture") to be
entered into between the Company and one or more trustees to be named therein
(the "Trustee"). The 8% Notes are issuable under an Indenture (the "8% Note
Indenture") dated as of March 18, 1998 between the Company and The Bank of New
York (the "8% Note Trustee").
As counsel to the Company, we have examined and relied upon originals
or copies, certified or otherwise identified to our satisfaction, of such
documents, certificates, corporate records and other instruments as we have
deemed necessary or advisable for the purpose of this opinion. In our
examination, we have assumed the authenticity of all documents submitted to us
as originals, the genuineness of all signatures thereon, the legal capacity of
natural persons executing such documents and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
<PAGE> 2
Based upon the foregoing, and subject to the assumptions and
limitations set forth herein, we are of the opinion that:
(i) When (a) appropriate corporate action has been taken by the Company
to authorize the form, terms, execution and delivery of the Indenture, any
applicable supplemental indenture thereto and the Debt Securities, (b) the
Indenture and any such supplemental indenture have been duly executed and
delivered by the Company and the Trustee, (c) appropriate action has been taken
by the Company to authorize the issuance and establish, in accordance with the
Indenture, the form and terms of the Debt Securities and (d) Debt Securities
with such terms are duly executed, attested, issued and delivered by duly
authorized officers of the Company against payment of the consideration therefor
and authenticated by the Trustee, all in the manner provided for in the
Indenture, any such supplemental indenture and such action, such Debt Securities
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
(ii) When (a) appropriate corporate action has been taken by the
Company to authorize the issuance, execution and delivery of the 8% Notes and
(b) the 8% Notes are duly executed, issued and delivered by duly authorized
officers of the Company against payment of the consideration therefor and
authenticated by the 8% Note Trustee, all in the manner provided for in the 8%
Note Indenture and such action, such 8% Notes will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
(iii) When appropriate corporate action has been taken by the Company
to authorize the issuance of shares of Common Stock, and when such shares of
Common Stock shall have been duly issued and delivered by the Company against
payment of the consideration therefor and in accordance with such corporate
action, such Common Stock will be validly issued, fully paid and non-assessable.
(iv) When (a) appropriate corporate action has been taken by the
Company to authorize the issuance of a series of Preferred Stock, to fix the
terms thereof and to authorize the execution and filing of an amendment to the
Company's articles of incorporation relating thereto with the Secretary of State
of the State of Ohio, (b) such certificate of designations shall have been
executed by duly authorized officers of the Company and so filed by the Company,
all in accordance with the laws of the State of Ohio, and (c) Preferred Stock
with terms so fixed shall have been duly issued and delivered by the Company
against payment of the consideration therefor or for Depositary Shares
representing interests therein in accordance with such corporate action, such
Preferred Stock will be validly issued, fully paid and nonassessable.
(v) When (a) appropriate corporate action has been taken by the Company
to authorize the form, terms, execution and delivery of a deposit agreement
(including a form of Depositary Receipt) (a "Deposit Agreement") with respect to
Depositary Shares to be entered into between the Company and a depositary (the
"Depositary") and to authorize the issuance of Depositary Shares thereunder, (b)
such Deposit Agreement has been duly executed and delivered by the Company and
the Depositary, (c) appropriate corporate action has been taken by the Company
to authorize the issuance of Preferred Stock and the deposit thereof with the
Depositary pursuant to the Deposit Agreement and the issuance of the
Depositary Shares representing interests therein, and (d) duly authorized and
validly issued, fully paid and non-assessable shares of such Preferred Stock
shall have been deposited with the Depositary in accordance with the Deposit
Agreement and such corporate action and the Depositary shall have duly executed,
issued and delivered Depositary Receipts with such terms evidencing such
Depositary Shares against payment of the consideration therefor, all in the
manner provided for in such Deposit Agreement and such corporate action, such
Depositary Shares will entitle the holders thereof to the benefits provided
therein and in the applicable Deposit Agreement.
2
<PAGE> 3
(vi) When (a) appropriate corporate action has been taken by the
Company to authorize the form, terms, execution and delivery of a warrant
agreement (including a form of certificate evidencing the Warrants) (a "Warrant
Agreement") to be entered into between the Company and a warrant agent (the
"Warrant Agent") and to authorize the issuance of Warrants thereunder, (b) such
Warrant Agreement has been duly executed and delivered by the Company and the
Warrant Agent and (c) Warrants with such terms are duly executed, attested,
issued and delivered by duly authorized officers of the Company against payment
of the consideration therefor and authenticated by the Warrant Agent, all in the
manner provided for in the Warrant Agreement and such corporate action, such
Warrants will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
(vii) When (a) appropriate corporate action has been taken by the
Company to authorize the form, terms, execution and delivery of a guarantee
agreement (a "Guarantee Agreement") with respect to Preferred Securities to be
entered into between the Company and a guarantee trustee (the "Guarantee
Trustee"), (b) such Guarantee Agreement shall have been duly executed and
delivered by the Company and the Guarantee Trustee, and (c) such Preferred
Securities shall have been duly authorized for issuance by the Trust's
declaration of trust, as the same may be amended or restated from time to time
(the "Declaration"), and duly executed, issued and delivered by duly authorized
trustees of the Trust against payment of the consideration therefor and
authenticated by the Guarantee Trustee, all in the manner provided for in the
Declaration, such Guarantee Agreement will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
With respect to enforcement, the above opinions are qualified to the
extent that such enforcement may be subject to or limited by bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium, arrangement or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. We have further
assumed with respect to enforcement that, when fixed, the terms of the
Securities will comply with all applicable "bucket shop" or similar state laws,
or have the availability of federal preemption therefrom.
In rendering the opinions expressed above, we have assumed that (i)
certificates representing shares of Common Stock and Preferred Stock will be in
due and proper form, will comply with applicable law and will have been duly
executed by duly authorized officers of the Company in accordance with
applicable law; (ii) the Preferred Securities of the Trust will have
3
<PAGE> 4
been validly issued and (except to the extent set forth in the Declaration)
will be fully paid and non-assessable; (iii) the Declaration has been duly
authorized, executed and delivered by, and constitutes a valid, binding and
enforceable obligation of, the parties thereto and that the Trust has been duly
organized and is validly existing in good standing as a business trust under
Delaware law; and (iv) the Securities and all other instruments and agreements
referred to in the foregoing opinions, and the execution, delivery and
performance thereof by the Company or the Trust, as the case may be, comply and
will comply with applicable law and do not and will not constitute a breach or
violation of the charter or by-laws of the Company, the Declaration or any other
instrument or agreement to which the Company or the Trust is or becomes a party
or by which either of them or any of their respective properties is or may be
bound.
In addition, we express no opinion as to the enforceability of
provisions of any of the Securities or any other instrument or agreement which
provide that the assertion or employment of any right or remedy shall not
prevent the concurrent assertion or employment of any other right or remedy, or
that every right and remedy shall be cumulative and in addition to every other
right and remedy, or that any delay or omission to exercise any right or remedy
shall not impair any other right or remedy or constitute a waiver thereof.
We are members of the bar of the State of Ohio and the foregoing
opinion is limited to matters arising under the laws of the State of Ohio and
the federal laws of the United States of America and we express no opinion with
respect to matters arising under the laws of any other jurisdiction. In giving
this opinion, we have, with your permission, relied as to matters of New York
law upon the opinion of Brown & Wood LLP, special counsel to the Company.
We consent to the filing of this opinion as an exhibit to the Company's
Registration Statement on Form S-3 and to the use of our name wherever appearing
in such Registration Statement and any amendment thereto; we consent also to the
reliance by Brown & Wood LLP upon this opinion as to matters of Ohio law in
rendering their opinion of even date herewith filed as an exhibit to the
Registration Statement. In giving the foregoing consent, however, we do not
admit that we come within the category of person whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
Cowden, Humphrey & Sarlson Co., L.P.A.
4
<PAGE> 1
Exhibit 5.2
[LETTERHEAD OF BROWN & WOOD LLP]
July 7, 1998
Advanced Lighting Technologies, Inc.
32000 Aurora Road
Solon, Ohio 44139
Ladies and Gentlemen:
We have acted as special counsel to Advanced Lighting Technologies,
Inc., an Ohio corporation (the "Company"), as to the laws of the State of New
York in connection with the proposed issuance and sale by the Company of up to
$300,000,000 aggregate initial public offering price of its (i) senior debt
securities (the "Senior Debt Securities"), (ii) subordinated debt securities
(the "Subordinated Debt Securities", and together with the Senior Debt
Securities, the "Debt Securities"), (iii) 8% Senior Notes Due 2008 (the "8%
Notes"; provided, that the aggregate principal amount issuable is limited to up
to $50,000,000), (iv) shares of common stock, par value $.001 per share (the
"Common Stock"), (v) shares of preferred stock, par value $.001 per share (the
"Preferred Stock"), (vi) depositary shares (the "Depositary Shares")
representing shares of Preferred Stock, which Depositary Shares will be
evidenced by depositary receipts (the "Depositary Receipts"), and (vii) warrants
to purchase Debt Securities, Common Stock or Preferred Stock (the "Warrants"),
and in connection with the proposed issuance by the Company of guarantees (the
"Guarantees") of up to $300,000,000 aggregate initial public offering price of
preferred securities (the "Preferred Securities") of ADLT Trust I, a Delaware
business trust (the "Trust"). The Debt Securities, the 8% Notes, the Common
Stock, the Preferred Stock, the Depositary Shares, the Warrants and the
Guarantees are hereinafter collectively referred to as the "Securities." The
Senior Debt Securities and Subordinated Debt Securities will be issuable under
an indenture (the "Indenture") to be entered into between the Company and one or
more trustees to be named therein (the "Trustee"). The 8% Notes are issuable
under an Indenture, dated as of March 18, 1998 (the "8% Notes Indenture"),
between the Company and The Bank of New York, as trustee (the "8% Notes
Trustee").
As special counsel to the Company, we have examined and relied upon
originals or copies, certified or otherwise identified to our satisfaction, of
such documents, certificates, corporate records and other instruments as we have
deemed necessary or advisable for the purpose of this opinion. In our
examination, we have assumed the authenticity of all documents submitted to us
as originals, the genuineness of all signatures thereon, the legal capacity of
natural persons executing such documents and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
<PAGE> 2
Based upon the foregoing, and subject to the assumptions and
limitations set forth herein, we are of the opinion that:
(i) When (a) appropriate corporate action has been taken by the Company
to authorize the form, terms, execution and delivery of the Indenture, any
applicable supplemental indenture thereto and the Debt Securities, (b) the
Indenture and any such supplemental indenture have been duly executed and
delivered by the Company and the Trustee, (c) appropriate action has been taken
by the Company to authorize the issuance and establish, in accordance with the
Indenture, the form and terms of the Debt Securities and (d) Debt Securities
with such terms are duly executed, issued and delivered by duly authorized
officers of the Company against payment of the consideration therefor and
authenticated by the Trustee, all in the manner provided for in the Indenture,
any such supplemental indenture and such action, such Debt Securities will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
(ii) When (a) appropriate corporate action has been taken by the
Company to authorize the execution and delivery of the 8% Notes and (b) 8% Notes
are duly executed, issued and delivered by duly authorized officers of the
Company against payment of the consideration therefor and authenticated by the
8% Notes Trustee, all in the manner provided for in the 8% Notes Indenture and
such action, such 8% Notes will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms.
(iii) When (a) appropriate corporate action has been taken by the
Company to authorize the form, terms, execution and delivery of a deposit
agreement (including a form of Depositary Receipt) (a "Deposit Agreement") with
respect to Depositary Shares to be entered into between the Company and a
depositary (the "Depositary") and to authorize the issuance of Depositary Shares
thereunder, (b) such Deposit Agreement has been duly executed and delivered by
the Company and the Depositary, (c) appropriate corporate action has been taken
by the Company to authorize the issuance of Preferred Stock and the deposit
thereof with the Depositary pursuant to the Deposit Agreement and the issuance
of the Depositary Shares representing interests therein and (d) duly authorized
and validly issued, fully paid and non-assessable shares of such Preferred Stock
shall have been deposited with the Depositary in accordance with the Deposit
Agreement and such corporate action and the Depositary shall have duly executed,
issued and delivered Depositary Receipts with such terms evidencing such
Depositary Shares against payment of the consideration therefor, all in the
manner provided for in such Deposit Agreement and such corporate action, such
Depositary Shares will entitle the holders thereof to the benefits provided
therein and in the applicable Deposit Agreement.
(iv) When (a) appropriate corporate action has been taken by the
Company to authorize the form, terms, execution and delivery of a warrant
agreement (including a form of certificate evidencing the Warrants) (a "Warrant
Agreement") to be entered into between the Company and a warrant agent (the
"Warrant Agent") and to authorize the issuance of Warrants thereunder, (b) such
Warrant Agreement has been duly executed and delivered by the Company and the
2
<PAGE> 3
Warrant Agent and (c) Warrants with such terms are duly executed, issued and
delivered by duly authorized officers of the Company against payment of the
consideration therefor and authenticated by the Warrant Agent, all in the manner
provided for in the Warrant Agreement and such corporate action, such Warrants
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
(v) When (a) appropriate corporate action has been taken by the Company
to authorize the form, terms, execution and delivery of a guarantee agreement (a
"Guarantee Agreement") with respect to Preferred Securities to be entered into
between the Company and a guarantee trustee (the "Guarantee Trustee"), (b) such
Guarantee Agreement shall have been duly executed and delivered by the Company
and the Guarantee Trustee, and (c) such Preferred Securities shall have been
duly authorized for issuance by the Trust's declaration of trust, as the same
may be amended or restated from time to time (the "Declaration"), and duly
executed, issued and delivered by duly authorized trustees of the Trust against
payment of the consideration therefor and authenticated by the Guarantee
Trustee, all in the manner provided for in the Declaration, such Guarantee
Agreement will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
With respect to enforcement, the above opinions are qualified to the
extent that such enforcement may be subject to or limited by bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium, arrangement or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. We have further
assumed with respect to enforcement that, when fixed, the terms of the
Securities will comply with all applicable "bucket shop" or similar state laws,
or have the availability of federal preemption therefrom.
In rendering the opinions expressed above, we have assumed that (i)
certificates representing shares of Preferred Stock will be in due and proper
form, will comply with applicable law and will have been duly executed by duly
authorized officers of the Company in accordance with applicable law; (ii) the
Preferred Securities of the Trust will have been validly issued and (except to
the extent set forth in the Declaration) will be fully paid and non-assessable;
(iii) the Declaration has been duly authorized, executed and delivered by, and
constitutes a valid, binding and enforceable obligation of, the parties thereto
and that the Trust has been duly organized and is validly existing in good
standing as a business trust under Delaware law; and (iv) the Securities and all
other instruments and agreements referred to in the foregoing opinions, and the
execution, delivery and performance thereof by the Company or the Trust, as the
case may be, comply and will comply with applicable law and do not and will not
constitute a breach or violation of the charter or by-laws of the Company, the
Declaration or any other instrument or agreement to which the Company or the
Trust is or becomes a party or by which either of them or any of their
respective properties is or may be bound.
In addition, we express no opinion as to the enforceability of
provisions of any of the Securities or any other instrument or agreement which
provide that the assertion or employment of any right or remedy shall not
prevent the concurrent assertion or employment of any other
3
<PAGE> 4
right or remedy, or that every right and remedy shall be cumulative and in
addition to every other right and remedy, or that any delay or omission to
exercise any right or remedy shall not impair any other right or remedy or
constitute a waiver thereof.
We are members of the bar of the State of New York and the foregoing
opinion is limited to matters arising under the laws of the State of New York
and the federal laws of the United States of America and we express no opinion
with respect to matters arising under the laws of any other jurisdiction. In
giving this opinion, we have, with your permission, relied as to matters of Ohio
law upon the opinion of Cowden, Humphrey & Sarlson Co., L.P.A., counsel to the
Company.
We consent to the filing of this opinion as an exhibit to the Company's
Registration Statement on Form S-3 and to the use of our name wherever appearing
in such Registration Statement and any amendment thereto; we consent also to the
reliance by Cowden, Humphrey & Sarlson Co., L.P.A. upon this opinion as to
matters of New York law in rendering their opinion of even date herewith filed
as an exhibit to the Registration Statement. In giving the foregoing consent,
however, we do not admit that we come within the category of person whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Brown & Wood LLP
4
<PAGE> 1
ADVANCED LIGHTING TECHNOLOGIES, INC.
EXHIBIT 12.1 -- STATEMENT RE: COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
(In Thousands)
Nine Months Ended
Pro Forma March 31, Pro Forma
Nine Months Ended ---------------------- Year Ended
March 31, 1998 1998 1997 June 30, 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Consolidated pretax income from
continuing operations ............. (22,837) $(21,214) $ 7,359 $ 10,703
Interest ............................ 6,485 1,649 749 8,620
Increase in value of warrants ....... -- -- -- --
Interest portion of rent expense .... 474 474 393 492
Preferred stock dividend
requirements of majority-owned
subsidiaries ....................... -- -- -- --
-------- -------- -------- --------
Earnings ....................... $(15,878) $(19,091) $ 8,501 $ 19,815
======== ======== ======== ========
Interest ............................ 6,485 $ 1,649 $ 749 $ 8,620
Increase in value of warrants ....... -- -- -- --
Interest capitalized ................ 680 680 206 455
Interest portion of rent expense .... 474 474 393 492
Preferred stock dividend
requirements of majority-owned
subsidiaries ....................... -- -- -- --
-------- -------- -------- --------
Fixed charges .................. $ 7,639 $ 2,803 $ 1,348 9,567
======== ======== ======== ========
Ratio of earnings to fixed charges .. -- -- 6.3 2.1
======== ======== ======== ========
<CAPTION>
Year Ended June 30,
-------------------------------------------------------------
1997 1996 1995 1994 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Consolidated pretax income from
continuing operations ............ $10,425 $ 3,632 $ 3,354 $ 1,277 $(6,334)
Interest ........................... 1,513 1,548 2,107 2,113 901
Increase in value of warrants ...... -- 1,350 2,302 -- 961
Interest portion of rent expense ... 492 297 204 193 159
Preferred stock dividend
requirements of majority-owned
subsidiaries ...................... -- -- 62 180 171
------- ------- ------- ------- -------
Earnings ...................... $12,430 $ 6,827 $ 8,029 $ 3,763 $(4,142)
======= ======= ======= ======= =======
Interest ........................... $ 1,513 $ 1,548 $ 2,107 $ 2,113 $ 901
Increase in value of warrants ...... -- 1,350 2,302 -- 961
Interest capitalized ............... 455 98 9 9 12
Interest portion of rent expense ... 492 297 204 193 159
Preferred stock dividend
requirements of majority-owned
subsidiaries ...................... -- -- 62 180 171
------- ------- ------- ------- -------
Fixed charges ................. $ 2,460 $ 3,293 $ 4,684 $ 2,495 $ 2,204
======= ======= ======= ======= =======
Ratio of earnings to fixed charges . 5.1 2.1 1.7 1.5 --
======= ======= ======= ======= =======
</TABLE>
For purposes of calculating the unaudited ratio of earnings to fixed charges,
earnings consist of income (loss) from continuing operations before provision
for income taxes plus fixed charges. Fixed charges consist of interest charges
and amortization of debt issuance cost, whether expensed or capitalized, and
that portion of rental expense that is representative of interest. In the nine
months ended March 31, 1998, earnings were inadequate to cover fixed charge
requirements by $21,894. In fiscal 1993, earnings were inadequate to cover fixed
charge requirements by $6,346. After giving effect to the transactions described
under "Unaudited Pro Forma Financial Data," earnings for the nine months ended
March 31, 1998, would be inadequate to cover fixed charge requirements by
$23,517. The pro forma ratio of earnings to fixed charges, after giving effect
to the transactions described under "Unaudited Financial Data," would be 2.1x
for the year ended June 30, 1997.
<PAGE> 1
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3, No. 333- ) and related Prospectus of
Advanced Lighting Technologies, Inc. and ADLT Trust I, for the registration of
$300,000,000 of securities and to the incorporation by reference therein of our
report dated September 25, 1997, (except earnings per share amounts and Notes
J, O and U, as to which the date is March 30, 1998), with respect to the
consolidated financial statements of Advanced Lighting Technologies, Inc. for
the year ended June 30, 1997 included in its Current Report on Form 8-K dated
July 7, 1998, and to the incorporation by reference therein of our report dated
December 19, 1997 with respect to the financial statements of Ruud Lighting,
Inc. for the year ended November 30, 1997 included in the Current Report on
Form 8-K of Advanced Lighting Technologies, Inc. dated January 14, 1998, both
as filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
July 6, 1998
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Wayne R. Hellman and/or Louis S. Fisi his attorney-in-fact, with the power of
substitution, for him in any and all capacities, to sign the Form S-3
Registration Statement, any amendments thereto or any new registration statement
filed pursuant to Rule 462(b) and amendments thereto, and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact or his substitute or substitutes may do or cause to be
done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Alan J. Ruud Vice Chairman July 7, 1998
- ---------------------- and Director
Alan J. Ruud
/s/ Louis S. Fisi Executive Vice President, July 7, 1998
- ---------------------- Secretary and Director
Louis S. Fisi
/s/ Theodore A. Filson Director July 7, 1998
- ----------------------
Theodore A. Filson
/s/ Francis H. Beam Director July 7, 1998
- ----------------------
Francis H. Beam
/s/ Susumu Harada Director July 7, 1998
- ----------------------
Susumu Harada
/s/ A Gordon Tunstall Director July 7, 1998
- ----------------------
A Gordon Tunstall
/s/ John R. Buerkle Director July 7, 1998
- ----------------------
John R. Buerkle
</TABLE>
<PAGE> 1
Exhibit 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
ADVANCED LIGHTING TECHNOLOGIES, INC.
(Exact name of obligor as specified in its charter)
Ohio 34-1803229
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
32000 Aurora Road
Solon, OH 44139
(Address of principal executive offices) (zip code)
----------------------
8% Senior Notes due 2008
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 2nd day of July, 1998.
THE BANK OF NEW YORK
By: /s/ Mary Jane Schmalzel
-----------------------------
Name: Mary Jane Schmalzel
Title: Vice President
<PAGE> 5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
<S> <C>
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................. $ 5,742,986
Interest-bearing balances .......... 1,342,769
Securities:
Held-to-maturity securities ........ 1,099,736
Available-for-sale securities ...... 3,882,686
Federal funds sold and Securities pur-
chased under agreements to resell..... 2,568,530
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................35,019,608
LESS: Allowance for loan and
lease losses ..............627,350
LESS: Allocated transfer risk
reserve..........................0
Loans and leases, net of unearned
income, allowance, and reserve 34,392,258
Assets held in trading accounts ...... 2,521,451
Premises and fixed assets (including
capitalized leases) ................ 659,209
Other real estate owned .............. 11,992
Investments in unconsolidated
subsidiaries and associated
companies .......................... 226,263
Customers' liability to this bank on
acceptances outstanding ............ 1,187,449
Intangible assets .................... 781,684
Other assets ......................... 1,736,574
-----------
Total assets ......................... $56,153,587
===========
LIABILITIES
Deposits:
In domestic offices ................ $27,031,362
Noninterest-bearing ......11,899,507
Interest-bearing .........15,131,855
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 13,794,449
Noninterest-bearing .........590,999
Interest-bearing .........13,203,450
Federal funds purchased and Securities
sold under agreements to repurchase. 2,338,881
Demand notes issued to the U.S.
Treasury ........................... 173,851
Trading liabilities .................. 1,695,216
Other borrowed money:
With remaining maturity of one year
or less .......................... 1,905,330
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 25,664
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,195,923
Subordinated notes and debentures .... 1,012,940
Other liabilities .................... 2,018,960
-----------
Total liabilities .................... 51,192,576
-----------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,093,726
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 36,866
Cumulative foreign currency transla-
tion adjustments ................... ( 36,184)
------------
Total equity capital ................. 4,961,011
------------
Total liabilities and equity
capital ............................ $56,153,587
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi |
Alan R. Griffith | Directors
J. Carter Bacot |
