<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 28, 1994
REGISTRATION NO. 33-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
UNION CAMP CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
VIRGINIA 13-5652423
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
1600 VALLEY ROAD
WAYNE, NEW JERSEY 07470
(201) 628-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
DIRK R. SOUTENDIJK, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
UNION CAMP CORPORATION
1600 VALLEY ROAD
WAYNE, NEW JERSEY 07470
(201) 628-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
KEVIN KEOGH, ESQ. STEPHEN A. GRANT, ESQ.
WHITE & CASE SULLIVAN & CROMWELL
1155 AVENUE OF THE AMERICAS 125 BROAD STREET
NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10004
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
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]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(1)(2) FEE
<S> <C> <C> <C> <C>
Debt Securities............................ U.S.$150,000,000 100% U.S.$150,000,000 $ 51,725
</TABLE>
(1) Or, if any Debt Securities are issued as an original issue discount or with
a principal amount denominated in a foreign currency or currency unit, such
principal amount as shall result in an aggregate initial offering price the
equivalent of U.S.$150,000,000 at the time of initial offering.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION, OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 28, 1994
$150,000,000
UNION CAMP CORPORATION
DEBT SECURITIES
------------------------
The Company may from time to time offer its debt securities consisting of
debentures, notes or other unsecured evidences of indebtedness ('Securities') at
an aggregate initial public offering price not to exceed U.S. $150,000,000 or
its equivalent in any other currency or composite currency. The Securities may
be offered as separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in supplements to this
Prospectus. The Company may sell Securities to or through underwriters, and also
may sell Securities directly to other purchasers or through agents. See 'Plan of
Distribution'.
The terms of the Securities, including, where applicable, the specific
designation, aggregate principal amount, denominations (which may be in United
States dollars, in any other currency or in a composite currency), maturity,
rate (which may be fixed or variable) and time of payment of interest, if any,
terms for redemption at the option of the Company or the holder, terms for
sinking or purchase fund payments, the initial public offering price, the names
of any underwriters or agents, the principal amounts, if any, to be purchased by
underwriters or agents and the compensation, if any, of such underwriters or
agents and the other terms in connection with the offering and sale of the
Securities in respect of which this Prospectus is being delivered, are set forth
in the accompanying Prospectus Supplement ('Prospectus Supplement').
- ----------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
<PAGE>
- ----------------------------------------------------------
THE DATE OF THIS PROSPECTUS IS , 1994.
2
<PAGE>
AVAILABLE INFORMATION
Union Camp is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the '1934 Act'), and, in accordance therewith,
files reports, proxy statements and other information with the Securities and
Exchange Commission (the 'Commission'). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. and at the following regional offices of the Commission: New York Regional
Office, Seven World Trade Center, Suite 1300, New York, New York 10048; and
Chicago Regional Office, Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be
obtained at prescribed rates by writing to the Commission, Public Reference
Section, 450 Fifth Street, N.W., Washington, D.C. 20549. Such material can also
be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, and the Pacific Stock Exchange, Inc., 115
Sansome Street, Suite 1004, San Francisco, California 94104.
This Prospectus constitutes part of a Registration Statement filed by Union
Camp with the Commission under the Securities Act of 1933, as amended. This
Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and to the
exhibits relating thereto for further information with respect to the Company
and the Securities offered hereby. Any statements contained herein concerning
the provisions of any document are not necessarily complete, and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the Company's
(i) Annual Report on Form 10-K for the fiscal year ended December 31, 1993, (ii)
Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30,
1994, (iii) Proxy Statement for the Annual Meeting of Stockholders on April 26,
1994 (filed with the Commission on March 18, 1994) and (iv) Current Report on
Form 8-K dated August 17, 1994, heretofore filed by the Company (Commission File
Number 1-4001) with the Commission pursuant to the 1934 Act.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated herein by reference shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated herein by reference modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
UNION CAMP WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS HAS BEEN DELIVERED, ON THE REQUEST OF ANY SUCH PERSON, A COPY OF
ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE
INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO SUCH
DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO MR. DIRK R.
SOUTENDIJK, VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY, UNION CAMP
CORPORATION, 1600 VALLEY ROAD, WAYNE, NEW JERSEY 07470, TELEPHONE: (201)
628-2000.
3
<PAGE>
THE COMPANY
Union Camp Corporation is a Virginia corporation resulting from a merger in
1956 of Union Bag and Paper Corporation and Camp Manufacturing Company,
Incorporated. Predecessor businesses were started in 1861 and 1887,
respectively.
Union Camp's principal businesses are (i) the manufacture and sale of paper
and paperboard, including bleached and unbleached kraft paper and paperboard,
(ii) the manufacture and sale of packaging products, such as bags and sacks,
corrugated and solid fiber containers, folding cartons, and plastic packaging,
(iii) the production and sale of wood products, including southern pine lumber,
plywood and particleboard, and (iv) the production and sale of a wide variety of
wood-based and non-wood-based chemicals, including aroma chemicals and flavor
and fragrance ingredients produced and sold by its majority-owned subsidiary,
Bush Boake Allen Inc. Union Camp controls approximately 1,575,000 acres of
timberlands in Georgia, Alabama, Virginia, Florida, North Carolina and South
Carolina, approximately 1,544,000 acres of which are owned by the Company.
Union Camp's principal executive offices are located at 1600 Valley Road,
Wayne, New Jersey 07470 and its telephone number is (201) 628-2000. As used in
this Prospectus, the terms 'Union Camp' and the 'Company' mean Union Camp
Corporation and its subsidiaries unless the context otherwise requires.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, Union
Camp intends to use the net proceeds from the sale of the Securities to
repurchase outstanding debt obligations, to provide funds for working capital
and for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges was 1.8 for the six months ended
June 30, 1994 and 1.7, 1.4, 2.0, 4.0 and 7.2 for the fiscal years ended December
31, 1993, 1992, 1991, 1990 and 1989, respectively. The ratio of earnings to
fixed charges was calculated based on information obtained from the Company's
books and records. In computing the ratio of earnings to fixed charges, earnings
consist of income before income taxes and fixed charges, less interest
capitalized net of amount amortized. Fixed charges consist of interest costs on
borrowed funds, including capitalized interest, and a reasonable approximation
of the imputed interest on non-capitalized lease payments.
DESCRIPTION OF SECURITIES
The Securities are to be issued under an Indenture dated as of November 1,
1994 (the 'Indenture'), between the Company and NationsBank of Georgia, National
Association, Trustee (the 'Trustee'). The following summary statements with
respect to the Securities do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, the detailed provisions of the
Indenture, which is filed as an exhibit to the Registration Statement. Whenever
any particular section of the Indenture or any term defined therein is referred
to, such section or definition is incorporated herein by reference.
GENERAL
The Securities offered hereby will be limited to an aggregate initial
offering price not to exceed U.S. $150,000,000 or its equivalent in any other
currency or composite currency although the Indenture does not limit the amount
of Securities which can be issued thereunder and provides that additional
Securities may be issued in one or more series thereunder up to the aggregate
principal amount which may be authorized from time to time by the Company's
Board of Directors. Reference is made to the Prospectus Supplement relating to
the particular series of Securities offered hereby (the 'Offered Securities')
for the following terms, where applicable, of the Offered Securities: (i) the
designation of the Offered Securities; (ii) the denominations of the Offered
Securities; (iii) the aggregate principal amount of the Offered Securities; (iv)
the date or dates on which the Offered Securities will mature; (v)
3
<PAGE>
the price or prices (expressed as a percentage of the aggregate principal amount
thereof) at which the Offered Securities will be issued; (vi) the rate per annum
at which the Offered Securities will bear interest, if any, and the date or
dates from which any such interest will accrue; (vii) the times and places at
which any such interest will be payable; (viii) the date, if any, after which
the Offered Securities may be redeemed and the redemption prices; (ix) the
currency or currencies of payment of principal of and any premium and interest
on the Offered Securities if other than U.S. dollars; (x) any index used to
determine the amount of payments of principal of and any premium and interest on
the Offered Securities; (xi) whether the Offered Securities will be issued in
whole or in part in the form of one or more Global Securities and, in such case,
the depositary for such Global Securities; and (xii) any other terms of the
Offered Securities. Unless otherwise provided in the applicable Prospectus
Supplement, principal and interest, if any, will be payable and the Offered
Securities may be surrendered for payment or transferred at the offices of the
Trustee as paying and authenticating agent, provided that payment of interest
may be made at the option of the Company by check mailed to the address of the
person entitled thereto as it appears in the Securities Register. (Sections 301,
615, 1002)
The Securities will be issued only in fully registered form without coupons
in denominations set forth in the Prospectus Supplement. No service charge will
be made for any transfer or exchange of such Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 305)
Some of the Securities may be issued as discounted debt securities (bearing
no interest or interest at below market rates) ('Discount Securities') to be
sold at a substantial discount below their stated principal amount. Federal
income tax consequences and other special considerations applicable to any such
Securities or any Securities which are denominated in a currency or composite
currency other than United States dollars will be described in the Prospectus
Supplement relating thereto.
The Prospectus Supplement for a particular series may indicate terms for
redemption at the option of a Holder. Unless otherwise indicated in the
Prospectus Supplement, the covenants contained in the Indenture and the
Securities would not provide for redemption at the option of a Holder nor
necessarily afford Holders protection in the event of a highly leveraged or
other transaction that may adversely affect Holders.
RESTRICTIVE COVENANTS
Definitions. 'Subsidiary' is defined as a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. 'Restricted Subsidiary' is defined as a Subsidiary of the
Company which owns or leases any Principal Property, except a Subsidiary which
is primarily engaged in the business of a finance company. (Section 101)
'Principal Property' is defined to include (a) any building, structure or
other facility (together with the land on which it is erected and fixtures
comprising a part thereof) used primarily for manufacturing and located in the
United States, in each case the gross book value (without deduction for any
depreciation reserves) of which, on the date as of which any determination is
made, exceeds 1% of the Consolidated Net Tangible Assets of the Company and its
consolidated Subsidiaries, other than any such facility or portion thereof which
is a pollution control or other facility financed by obligations issued by a
State or local governmental unit, and (b) any timberlands in the United States
other than timberlands in the aggregate not exceeding 10% of the timberland
acreage owned by the Company on the date as of which any determination is made;
provided, however, that Principal Property shall not include any timberlands or
facility which, in the opinion of the Board of Directors of the Company, is not
of material importance to the total business conducted by the Company and its
Subsidiaries as an entirety. (Section 101)
'Debt' is defined as notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed. (Section 1008) 'Attributable Debt' is defined
to mean the total net amount of rent (discounted at the rate of interest
implicit in the terms of such lease, as determined in good faith by the Company)
required to be paid during the remaining term of any lease. (Section 101)
'Consolidated Net Tangible Assets' is defined to mean the aggregate amount of
assets as set forth on a balance sheet of
4
<PAGE>
the Company and its consolidated Subsidiaries after deducting (a) all current
liabilities (excluding any thereof constituting Funded Debt by reason of being
renewable or extendible) and (b) all goodwill and like intangibles. (Section
101)
Restrictions on Secured Debt. If the Company or any Subsidiary shall
incur, issue, assume or guarantee any Debt secured by a Mortgage on any
Principal Property owned or leased by the Company or a Restricted Subsidiary or
on any shares of stock or Debt of any Restricted Subsidiary, the Company will
secure, or cause such Restricted Subsidiary to secure, the Securities equally
and ratably with (or prior to) such Debt, unless after giving effect thereto the
aggregate amount of all such Debt so secured after the date of the Indenture
together with all Attributable Debt in respect of sale and leaseback
transactions after the date of the Indenture involving Principal Properties
owned by the Company or a Restricted Subsidiary would not exceed the sum of 5%
of the Consolidated Net Tangible Assets of the Company and its consolidated
Subsidiaries plus $50,000,000. This restriction will not apply to, and there
shall be excluded in computing secured Debt for the purpose of such restriction,
Debt secured by (a) Mortgages on property of, or on any shares of stock or Debt
of, any corporation existing at the time such corporation becomes a Restricted
Subsidiary, (b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages for taxes, assessments or governmental charges or levies, in each
case (i) not then due and delinquent or (ii) the validity of which is being
contested in good faith by appropriate proceedings; and materialmen's,
mechanics' and other like Mortgages, or deposits to obtain the release of such
Mortgages, (d) Mortgages to secure public or statutory obligations or to secure
payment of workmen's compensation or to secure performance in connection with
tenders, leases of real property, bids or contracts or to secure (or in lieu of)
surety or appeal bonds and Mortgages made in the ordinary course of business for
similar purposes, (e) Mortgages on property, shares of stock or Debt existing at
the time of, or within 120 days after, acquisition thereof (including
acquisition through merger or consolidation), purchase money Mortgages and
construction cost Mortgages, (f) Mortgages on timberlands in connection with an
arrangement under which the Company or the Company and one or more Restricted
Subsidiaries are obligated to cut or pay for timber in order to provide the
party in whose favor such Mortgages were created with a specified amount of
money, however determined, and (g) any extension, renewal or refunding, as a
whole or in part, of any Mortgage referred to in the foregoing clauses (a)
through (f), inclusive. (Section 1008) The Indenture does not restrict the
incurring of unsecured Debt by the Company or its Subsidiaries.
Restrictions on Sales and Leasebacks. Neither the Company nor any
Restricted Subsidiary may enter into any sale and leaseback transaction
involving any Principal Property owned by the Company or a Restricted
Subsidiary, the acquisition of which, or completion of construction and
commencement of full operation of which, has occurred more than 120 days prior
thereto, unless (a) the Company or such Restricted Subsidiary could create Debt
secured by a Mortgage on such property pursuant to Section 1008 in an amount
equal to the Attributable Debt with respect to the sale and leaseback
transaction without equally and ratably securing the Securities or (b) the
Company, within 120 days, applies (i) to the retirement of its Funded Debt or
(ii) to the purchase of other property having a value at least equal to the net
proceeds of such sale, an amount equal to the greater of (a) the net proceeds of
the sale of the Principal Property leased pursuant to such arrangement or (b)
the fair market value of the Principal Property so leased (subject to credits
for certain voluntary retirements of Funded Debt). This restriction will not
apply to any sale and leaseback transaction (a) between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries or (b) involving the
taking back of a lease for a period of three years or less. (Section 1009)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to
Securities of any series: (a) failure to pay principal of or premium, if any, on
any Security of that series when due; (b) failure to pay any interest on any
Security of that series when due, continued for 30 days; (c) failure to deposit
any sinking fund payment, when due, in respect of any Security of that series,
continued for 30 days; (d) failure to perform any other covenant of the Company
in the Indenture (other than a covenant included in the Indenture solely for the
benefit of a series of Securities other than that series), continued for 60 days
after written notice as provided in the Indenture; (e) acceleration of any
indebtedness for money
5
<PAGE>
borrowed in excess of $25,000,000 by the Company under the terms of the
instrument under or by which such indebtedness is issued, evidenced or secured
if such acceleration is not annulled within 30 days after written notice as
provided in the Indenture; (f) certain events in bankruptcy, insolvency or
reorganization; and (g) any other Event of Default provided with respect to
Securities of that series. (Section 501) If an Event of Default with respect to
Securities of any series at the time Outstanding shall occur and be continuing,
either the Trustee or the Holders of at least 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all
Securities of that series to be due and payable immediately. However, at any
time after a declaration of acceleration with respect to Securities of any
series has been made, but before a judgment or decree based on such acceleration
has been obtained, the Holders of a majority in principal amount of Outstanding
Securities of that series may, under certain circumstances, rescind and annul
such acceleration. (Section 502) For information as to waiver of defaults, see
'Modification and Waiver.'
Reference is made to the Prospectus Supplement relating to each series of
Offered Securities which are Discount Securities for the particular provisions
relating to acceleration of the Maturity of a portion of the principal amount of
such Discount Securities upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Securities of any series will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of that series. (Section 512)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1006)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of 66 2/3% in principal amount
of the Outstanding Securities of each series affected thereby; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Security affected thereby, (a) change the stated
maturity date of the principal of, or any installment of principal of or
interest on, any Security, (b) reduce the principal amount of, or the premium
(if any) or interest (if any) on, any Security, (c) reduce the amount of
principal of any Discount Security payable upon acceleration of the Maturity
thereof, (d) change the place or currency of payment of principal of, or premium
(if any) or interest (if any) on, any Security, (e) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Security, or (f) reduce the percentage in principal amount of Outstanding
Securities of any series, the consent of the Holders of which is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults. (Section
902)
The Holders of a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all Securities of that series
waive, insofar as that series is concerned, compliance by the Company with
certain restrictive provisions of the Indenture. (Section 1010) The Holders of a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all Securities of that series waive any past default
under the Indenture with respect to Securities of that series, except a default
in the payment of the principal of (or premium, if any) or interest on any
Security of that series or in respect of any provision which under the Indenture
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of that series affected. (Section 513)
6
<PAGE>
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of Outstanding Securities,
may consolidate or merge with or into, or transfer or lease its assets as an
entirety to, any Person, and any other Person may consolidate or merge with or
into, or transfer or lease its assets substantially as an entirety to, the
Company, provided (i) that the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or which acquires or leases
the assets of the Company substantially as an entirety is organized and existing
under the laws of any United States jurisdiction and assumes the Company's
obligations on the Securities and under the Indenture, (ii) that after giving
effect to such transaction no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have happened
and be continuing (provided that a transaction will be deemed to be in violation
of this proviso (ii) only as to any series of Securities as to which such Event
of Default or such event shall have occurred and be continuing), and (iii) that
certain other conditions are met. (Article Eight)
REGARDING THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee shall perform only such duties as are specifically set
forth in the Indenture. During the continuance of any Event of Default, the
Trustee shall exercise such of the rights and powers vested in it under the
Indenture, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. (Section 601)
The Trustee may acquire and hold Securities and, subject to certain
conditions, otherwise deal with the Company as if it were not Trustee under the
Indenture. (Section 605)
PLAN OF DISTRIBUTION
General. The Company may sell Securities to or through underwriters, and
also may sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company, or from purchasers of Securities for whom they
may act as agents, in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended (the '1933 Act'). Any such underwriter or
agent will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement.
The Securities will be a new issue of Securities with no established
trading market. Underwriters and agents to whom Securities are sold by the
Company for public offering and sale may make a market in such Securities, but
such underwriters and agents will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as to
the liquidity of the trading market for the Securities.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the 1933 Act.
Delayed Delivery Arrangements. If so indicated in the Prospectus
Supplement, the Company will authorize underwriters or other persons acting as
the Company's agents to solicit offers by certain institutions to purchase
Securities from the Company pursuant to contracts providing for payment and
delivery on a future date. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but in
all cases such institutions must be approved by the Company. The
7
<PAGE>
obligations of any purchaser under any such contract will be subject to the
condition that the purchase of the Offered Securities shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by White & Case, 1155 Avenue of the Americas, New York, New York, and for the
underwriters or agents, if any, by Sullivan & Cromwell, 125 Broad Street, New
York, New York.
EXPERTS
The consolidated financial statements and schedules of Union Camp
Corporation incorporated in this Prospectus by reference to Union Camp
Corporation's Annual Report on Form 10-K for the year ended December 31, 1993,
have been so incorporated in reliance on the reports of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance of the securities being registered
hereby are estimated as follows:
<TABLE>
<S> <C>
Registration fee.............................................................. $ 51,725
Accounting fees and expenses.................................................. $ 50,000*
Legal fees and expenses....................................................... $ 55,000*
Blue Sky and Legal Investment fees and expenses............................... $ 20,000*
Trustee's fees and expenses................................................... $ 15,000*
Rating agency fees............................................................ $ 60,000*
Printing expenses............................................................. $ 20,000*
Miscellaneous................................................................. $ 3,275*
--------
Total......................................................................... $275,000*
--------
--------
</TABLE>
- ------------
* Subject to future contingencies.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Company provide that each person who now is, was or
hereafter becomes a director or officer shall be indemnified by the Company
against liabilities and expenses reasonably incurred by or imposed on such
person, including liabilities arising under the Securities Act of 1933, in
connection with any action, suit or proceeding in which such person was, is or
is threatened to be made a party by reason of such person now or hereafter being
or having been a director or officer of the Company, only if (i) such person
acted in relation to such matters in a manner such person believed, in the case
of conduct in his official capacity, to be in the best interests of the Company,
and in all other cases his conduct was at least not opposed to the Company's
best interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such conduct was unlawful, (ii) in connection with a
proceeding by or in the right of the Company, such person was not adjudged
liable to the Company and (iii) in connection with any proceeding charging
improper benefit to such person, whether or not involving action in his official
capacity, he was not adjudged liable on the basis that personal benefit was
improperly received by him. Such rights of indemnification are in addition to
any other rights to which any such person may otherwise be entitled. In
addition, directors have indemnification contracts with the Company that provide
for substantially similar indemnification as that provided for by the By-Laws.
The Virginia Stock Corporation Act also provides that a corporation may
indemnify any officer or director against loss and expense reasonably incurred
in connection with a civil suit or proceeding to which such person is a party by
reason of being such officer or director, on condition such person acted in good
faith and believed his conduct was in the corporation's best interest in the
case of conduct in his official capacity, or, in all the other cases, believed
his conduct was not opposed to the best interests of the corporation. With
respect to a criminal proceeding, a corporation may indemnify an officer or
director under the same conditions as set forth above if such person had no
reasonable cause to believe his conduct was unlawful. With respect to suit
brought by or in the right of the corporation to which an officer or director is
adjudged liable, indemnification may be made only if a court determines such
person is fairly and reasonably entitled to indemnification in view of the
relevant circumstances, provided any such indemnification shall be limited to
reasonable expenses incurred.
The Company maintains both Directors' and Officers' liability and Corporate
Reimbursement insurance which provides for payments on behalf of the Directors
and Officers of all losses of such
II-1
<PAGE>
persons (other than matters uninsurable under the law) arising from claims,
including claims arising under the Securities Act of 1933, for acts or omissions
by such persons while acting as Directors or Officers.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
------ ---------------------------------------------------------------------------------------------------
<C> <S>
1.1 -- Proposed form of Underwriting Agreement relating to the Securities.*
1.2 -- Proposed form of Distribution Agreement relating to the Securities.**
4 -- Form of Indenture dated as of November 1, 1994 between the Company and NationsBank of Georgia,
National Association (including forms of Securities).
5 -- Opinion of White & Case.
12 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of White & Case (included in Exhibit 5).
24 -- Power of Attorney of certain officers and directors (included on pages II-4 and II-5 of the
Registration Statement).
25 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of
NationsBank of Georgia, National Association, Indenture Trustee.
</TABLE>
- ------------
* Previously filed as an Exhibit to the Company's Registration Statement No.
33-44911.
** Previously filed as an Exhibit to the Company's Registration Statement No.
33-37715.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(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) 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;
(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 (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's 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 this Registration Statement shall be
deemed to be a new Registration Statement relating to the
II-2
<PAGE>
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus, filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Wayne, State of New Jersey, on the 28th day of
October, 1994.
UNION CAMP CORPORATION
By /s/ W. CRAIG MCCLELLAND
...................................
W. CRAIG MCCLELLAND
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes James M. Reed and Dirk R. Soutendijk, and each of them, as
attorney-in-fact, to sign in such person's behalf, individually and in each
capacity stated below, and to file any amendments, including post-effective
amendments, to this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities stated below on October 28, 1994.
<TABLE>
<S> <C>
/s/ W. CRAIG MCCLELLAND Chairman of the Board and
...................................... Chief Executive Officer
(W. CRAIG MCCLELLAND) (Principal Executive Officer)
/s/ JERRY H. BALLENGEE Director, President and Chief
...................................... Operating Officer
(JERRY H. BALLENGEE)
/s/ JAMES M. REED Vice Chairman of the Board and Chief
...................................... Financial Officer
(JAMES M. REED) (Principal Financial Officer)
/s/ ROBERT E. MOORE Vice President and Comptroller
...................................... (Principal Accounting Officer)
(ROBERT E. MOORE)
/s/ GEORGE D. BUSBEE Director
......................................
(GEORGE D. BUSBEE)
/s/ RAYMOND E. CARTLEDGE Director
......................................
(RAYMOND E. CARTLEDGE)
/s/ SIR COLIN R. CORNESS Director
......................................
(SIR COLIN R. CORNESS)
/s/ ROBERT D. KENNEDY Director
......................................
(ROBERT D. KENNEDY)
/s/ GARY E. MACDOUGAL Director
......................................
(GARY E. MACDOUGAL)
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
/s/ ANN D. MCLAUGHLIN Director
......................................
(ANN D. MCLAUGHLIN)
/s/ JAMES T. MILLS Director
......................................
(JAMES T. MILLS)
/s/ GEORGE J. SELLA, JR. Director
......................................
(GEORGE J. SELLA, JR.)
/s/ TED D. SIMMONS Director
......................................
(TED D. SIMMONS)
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER PAGE
- ------ ----
<S> <C> <C>
1.1 -- Proposed form of Underwriting Agreement relating to the Securities.*
1.2 -- Proposed form of Distribution Agreement relating to the Securities.**
4 -- Form of Indenture dated as of November 1, 1994 between the Company and NationsBank of Georgia,
National Association (including forms of Securities).
5 -- Opinion of White & Case.
12 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of White & Case (included in Exhibit 5).
24 -- Power of Attorney of certain officers and directors (included on pages II-4 and II-5).
25 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of
NationsBank of Georgia, National Association, Indenture Trustee.
</TABLE>
- ------------
* Previously filed as an Exhibit to the Company's Registration Statement No.
33-44911.
** Previously filed as an Exhibit to the Company's Registration Statement No.
33-37715.
II-6
<PAGE>
EXHIBIT 4
UNION CAMP CORPORATION
TO
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION
TRUSTEE
INDENTURE
DATED AS OF NOVEMBER 1, 1994
<PAGE>
UNION CAMP CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF NOVEMBER 1, 1994
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENDURE SECTION
<S> <C>
SS310(a)(1).............................................................................. 609
(a)(2).............................................................................. 609
(a)(3).............................................................................. Not Applicable
(a)(4).............................................................................. Not Applicable
(b)................................................................................. 608
610
SS311(a)(1).............................................................................. 613(a)
(b)................................................................................. 613(b)
(b)(2).............................................................................. 703(a)(2)
703(b)
SS312(a)................................................................................. 701
702(a)
(b)................................................................................. 702(b)
(c)................................................................................. 702(c)
SS313(a)................................................................................. 703(a)
(b)................................................................................. 703(b)
(c)................................................................................. 703(a)
703(b)
(d)................................................................................. 703(c)
SS314(a)................................................................................. 704
(b)................................................................................. Not Applicable
(c)(1).............................................................................. 102
(c)(2).............................................................................. 102
(c)(3).............................................................................. Not Applicable
(d)................................................................................. Not Applicable
(e)................................................................................. 102
SS315(a)................................................................................. 601(a)
(b)................................................................................. 602
703(a)(6)
(c)................................................................................. 601(b)
(d)................................................................................. 601(c)
(d)(1).............................................................................. 601(a)(1)
(d)(2).............................................................................. 601(f)
(d)(3).............................................................................. 601(c)(3)
(e)................................................................................. 514
SS316(a)................................................................................. 101
(a)(1)(A)........................................................................... 502
512
(a)(l)(B)........................................................................... 513
(a)(2).............................................................................. Not Applicable
(b)................................................................................. 508
SS317(a)(1).............................................................................. 503
(a)(2).............................................................................. 504
(b)................................................................................. 1003
SS318(a)................................................................................. 107
</TABLE>
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
RECITALS OF THE COMPANY.......................................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................... 1
SECTION 101. Definitions..................................................................... 1
SECTION 102. Compliance Certificates and Opinions............................................ 8
SECTION 103. Form of Documents Delivered to Trustee.......................................... 9
SECTION 104. Acts of Holders................................................................. 10
SECTION 105. Notices, Etc., to Trustee and Company........................................... 11
SECTION 106. Notice to Holders; Waiver....................................................... 11
SECTION 107. Conflict with Trust Indenture Act............................................... 11
SECTION 108. Effect of Headings and Table of Contents........................................ 12
SECTION 109. Successors and Assigns.......................................................... 12
SECTION 110. Separability Clause............................................................. 12
SECTION 111. Benefits of Indenture........................................................... 12
SECTION 112. Governing Law................................................................... 12
SECTION 113. Legal Holidays.................................................................. 12
ARTICLE TWO SECURITY FORMS.................................................................. 13
SECTION 201. Forms Generally................................................................. 13
SECTION 202. Form of Face of Security........................................................ 13
SECTION 203. Form of Reverse of Security..................................................... 15
SECTION 204. Additional Provisions Required in Global Security............................... 20
SECTION 205. Form of Trustee's Certificate of Authentication................................. 20
ARTICLE THREE THE SECURITIES.................................................................. 21
SECTION 301. Amount Unlimited; Issuable in Series............................................ 21
SECTION 302. Denominations................................................................... 23
SECTION 303. Execution, Authentication, Delivery and Dating.................................. 23
SECTION 304. Temporary Securities............................................................ 26
SECTION 305. Registration, Registration of Transfer and Exchange............................. 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities................................ 28
SECTION 307. Payment of Interest; Interest Rights Preserved.................................. 29
SECTION 308. Persons Deemed Owners........................................................... 31
SECTION 309. Cancellation.................................................................... 31
SECTION 310. Computation of Interest......................................................... 31
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE FOUR SATISFACTION AND DISCHARGE...................................................... 31
SECTION 401. Satisfaction and Discharge of Indenture......................................... 31
SECTION 402. Application of Trust Money...................................................... 33
ARTICLE FIVE REMEDIES........................................................................ 33
SECTION 501. Events of Default............................................................... 33
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............................. 36
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee................. 38
SECTION 504. Trustee May File Proofs of Claim................................................ 38
SECTION 505. Trustee May Enforce Claims without Possession of Securities..................... 39
SECTION 506. Application of Money Collected.................................................. 40
SECTION 507. Limitation on Suits............................................................. 40
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest....... 41
SECTION 509. Restoration of Rights and Remedies.............................................. 41
SECTION 510. Rights and Remedies Cumulative.................................................. 42
SECTION 511. Delay or Omission Not Waiver.................................................... 42
SECTION 512. Control by Holders.............................................................. 42
SECTION 513. Waiver of Past Defaults......................................................... 43
SECTION 514. Undertaking for Costs........................................................... 44
SECTION 515. Waiver of Stay or Extension Laws................................................ 44
ARTICLE SIX THE TRUSTEE..................................................................... 44
SECTION 601. Certain Duties and Responsibilities............................................. 44
SECTION 602. Notice of Defaults.............................................................. 46
SECTION 603. Certain Rights of Trustee....................................................... 47
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......................... 48
SECTION 605. May Hold Securities............................................................. 48
SECTION 606. Money Held in Trust............................................................. 48
SECTION 607. Compensation and Indemnification of Trustee..................................... 48
SECTION 608. Disqualification; Conflicting Interests......................................... 50
SECTION 609. Corporate Trustee Required; Eligibility......................................... 57
SECTION 610. Resignation and Removal; Appointment of Successor............................... 57
SECTION 611. Acceptance of Appointment by Successor.......................................... 59
SECTION 612. Merger, Conversion, Consolidation or Succession to Business 60
SECTION 613. Preferential Collection of Claims Against Company............................... 60
SECTION 614. Appointment of Authenticating Agent............................................. 61
SECTION 615. Maintenance of Agency by Trustee................................................ 62
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................... 63
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders....................... 63
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 702. Preservation of Information; Communications to Holders.......................... 63
SECTION 703. Reports by Trustee.............................................................. 65
SECTION 704. Reports by Company.............................................................. 65
ARTILCLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............................ 66
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms............................ 66
SECTION 802. Successor Corporation Substituted............................................... 67
ARTICLE NINE SUPPLEMENTAL INDENTURES......................................................... 67
SECTION 901. Supplemental Indentures without Consent of Holders.............................. 67
SECTION 902. Supplemental Indentures with Consent of Holders................................. 69
SECTION 903. Execution of Supplemental Indentures............................................ 70
SECTION 904. Effect of Supplemental Indentures............................................... 70
SECTION 905. Conformity with Trust Indenture Act............................................. 70
SECTION 906. Reference in Securities to Supplemental Indentures.............................. 71
ARTICLE TEN COVENANTS....................................................................... 71
SECTION 1001. Payment of Principal, Premium and Interest...................................... 71
SECTION 1002. Maintenance of Office or Agency................................................. 71
SECTION 1003. Money for Securities Payments to Be Held In Trust............................... 72
SECTION 1004. Payment of Taxes and Other Claims............................................... 73
SECTION 1005. Maintenance of Principal Properties............................................. 74
SECTION 1006. Statement as to Default......................................................... 74
SECTION 1007. Corporate Existence............................................................. 75
SECTION 1008. Limitation on Liens............................................................. 75
SECTION 1009. Limitation on Sales and Leasebacks.............................................. 76
SECTION 1010. Waiver of Certain Covenants..................................................... 78
ARTICLE ELEVEN REDEMPTION OF SECURITIES........................................................ 78
SECTION 1101. Applicability of Article........................................................ 78
SECTION 1102. Election to Redeem; Notice to Trustee........................................... 78
SECTION 1103. Selection by Trustee of Securities to Be Redeemed............................... 79
SECTION 1104. Notice of Redemption............................................................ 79
SECTION 1105. Deposit of Redemption Price..................................................... 80
SECTION 1106. Securities Payable on Redemption Date........................................... 80
SECTION 1107. Securities Redeemed in Part..................................................... 81
ARTICLE TWELVE SINKING FUNDS................................................................... 81
SECTION 1201. Applicability of Article........................................................ 81
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........................... 82
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1203. Redemption of Securities for Sinking Fund....................................... 82
TESTIMONIUM...................................................................................... 83
SIGNATURES AND SEALS............................................................................. 83
ACKNOWLEDGEMENTS................................................................................. 84
</TABLE>
iv
<PAGE>
INDENTURE, dated as of November 1, 1994, between UNION CAMP CORPORATION, a
corporation duly organized and existing under the laws of the Commonwealth of
Virginia (herein called the 'Company'), having its principal office at 1600
Valley Road, Wayne, New Jersey 07470, and NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, a trust company duly organized and existing under the laws of the
United States, as Trustee (herein called the 'Trustee').
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
'Securities'), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(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; and
(4) the words 'herein', 'hereof' and 'hereunder' and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms used principally in Article Six are defined in that Article.
'Act', when used with respect to any Holder, has the meaning specified in
Section 104.
'Affiliate' of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, 'control' when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms 'controlling' and
'controlled' have meanings correlative to the foregoing.
'Attributable Debt' means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease, as determined in good faith by the Company,
compounded semi-annually. The net amount of rent required to be paid under any
such lease for such period shall be the amount of the rent payable by the lessee
with respect to such period, after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water rates,
common area charges and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated.
'Authenticating Agent' means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
2
<PAGE>
'Board of Directors' means either the board of directors of the Company or
any duly authorized committee of that board.
'Board Resolution' means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
'Business Day', when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
'Commission' means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
'Company' means the Person named as the 'Company' in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter 'Company' shall mean
such successor corporation.
'Company Request' or 'Company Order' means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
'Consolidated Net Tangible Assets' means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendible) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
'Corporate Trust Office' means the office of the Trustee in Atlanta,
Georgia at which at any particular time its corporate trust business shall be
administered.
'corporation' includes corporations, associations, companies and business
trusts.
3
<PAGE>
'Defaulted Interest' has the meaning specified in Section 307.
'Depository' means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depository for such series by the Company pursuant to
Section 301.
'Event of Default' has the meaning specified in Section 501.
'Funded Debt' means all indebtedness for money borrowed, or evidenced by a
bond, debenture, note or similar instrument or agreement whether or not for
money borrowed, having a maturity of more than 12 months from the date as of
which the amount thereof is to be determined or having a maturity of less than
12 months but by its terms being renewable or extendable beyond 12 months from
such date at the option of the borrower.
'Global Security' means a Security in the form prescribed in Section 204
evidencing all or part of a series of Securities, issued to the Depository for
such series or its nominee, and registered in the name of such Depository or
nominee.
'Holder' means a Person in whose name a Security is registered in the
Security Register.
'Indenture' means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
'Interest', when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
'Interest Payment Date', when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
'Maturity', when used 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 therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
'Officers' Certificate' means a certificate signed by the Chairman of the
Board, the Vice Chairman, the President or a Vice President, and by the
Treasurer, an
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Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
'Opinion of Counsel' means a written opinion of counsel, who may be counsel
for the Company.
'Original Issue Discount Security' means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
'Outstanding', when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; 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;
and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee and the
Company proof satisfactory to them that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in a foreign currency or currencies shall be the U.S. 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
U.S. dollar
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equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any affiliate of the Company or of such other obligor.
'Paying Agent' means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
'Person' means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
'Place of Payment', when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
'Predecessor Security' of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
'Principal Property' means (i) any building, structure or other facility,
together with the land upon which it is erected and fixtures comprising a part
thereof, used primarily for manufacturing and located in the United States, in
each case the gross book value (without deduction of any depreciation reserves)
of which on the date as of which the determination is being made exceeds 1% of
Consolidated Net Tangible Assets, other than any building, structure or other
facility or portion thereof which is a pollution control or other facility
financed by obligations issued by a State or local governmental unit and (ii)
any timberlands in the United States other than timberlands in the aggregate not
exceeding 10% of the timberland acreage owned by the Company on the date as of
which any determination is made; provided, however, that Principal
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Property shall not include any timberlands, building, structure or facility
which, in the opinion of the Board of Directors of the Company, is not of
material importance to the total business conducted by the Company and its
Subsidiaries as an entirety.
'Redemption Date', when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
'Redemption Price', when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
'Regular Record Date' for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
'Responsible Officer', when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
'Restricted Subsidiary' means any Subsidiary which owns or leases any
Principal Property, provided that Restricted Subsidiary shall not include any
subsidiary the primary business of which consists of financing operations in
connection with leasing and conditional sales transactions on behalf of the
Company and its Subsidiaries, and/or purchasing accounts receivable and/or
making loans secured by accounts receivable or inventory, or which is otherwise
primarily engaged in the business of a finance company.
'Securities' has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
'Security Register' and 'Security Registrar' have the respective meanings
specified in Section 305.
'Special Record Date' for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
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'Stated Maturity', when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
'Subsidiary' means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, 'voting stock' means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
'Trustee' means the Person named as the 'Trustee' in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter 'Trustee' shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, 'Trustee' as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
'Trust Indenture Act' means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
'United States' means the United States excluding its territories and
possessions.
'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.'
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by 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 on the part of the
Company, 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 is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
8
<PAGE>
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. 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 opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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<PAGE>
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the 'Act' of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of 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, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
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SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration Division, or;
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
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SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for
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the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
UNION CAMP CORPORATION
---------------------------------------------
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No. _________ $ _____
UNION CAMP CORPORATION, a corporation duly organized and existing under the
laws of Virginia (herein called the 'Company', which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ____________, or registered assigns, the principal sum
of ____________ Dollars on ____________ [If the Security is to bear interest
prior to Maturity, insert--, and to pay interest thereon from ______ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on _____ and _____ in each year, commencing
________, at the rate of _____% per annum, until the principal hereof is paid or
made available for payment [If applicable insert--, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of _____% per
annum on any overdue principal and premium and on any overdue installment of
interest.] The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _____ or _____ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert-- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for
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payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert-- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in [the Place of Payment], and
at the office or agency of the Company or the agency of the Trustee maintained
for that purpose in The City of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
UNION CAMP CORPORATION
By ______________________________
Attest:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the 'Securities'), issued and to be issued in one or more
series under an Indenture, dated as of November 1, 1994 (herein called the
'Indenture'), between the
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Company and NationsBank of Georgia, National Association, as Trustee (herein
called the 'Trustee', which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [limited in aggregate principal amount to $____________].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on ______ in any year commencing with the year _______ and ending with the
year _______ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after____________], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before______ , ______%, and if redeemed] during the
12-month period beginning ____________ of the years indicated,
<TABLE>
<S> <C> <C> <C>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ----- ---------- ---- ----------
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption [if applicable, insert-- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities,
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of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert-- The Securities of this series are subject to redemption
upon not less than 30 days' notice by mail, (1) on ______ in any year commencing
with the year ______ and ending with the year ______ through operation of the
sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [on or after ______], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning ______ of the years indicated,
<TABLE>
<S> <C> <C>
REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
- ----- ----------------- ----------------------
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to ______,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company
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(calculated in accordance with generally accepted financial practice) of less
than ______% per annum.]
[The sinking fund for this series provides for the redemption on ______ in
each year beginning with the year ______ and ending with the year ______ of [not
less than] $______ [('mandatory sinking fund') and not more than $______]
aggregate principal amount of Securities of this series. [Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made -- in the inverse order in which
they become due.]
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
[If the Security is not an Original Issue Discount Security, -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is on Original Issue Discount Security, -- If an Event of
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to --insert formula for determining the amount. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
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<PAGE>
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an 'eligible guarantor
institution' meeting the requirements of the Security Registrar which
requirements include membership or participation in Securities Transfer Agent's
Medallian Program ('Stamp') or such other 'signature guarantee program' as may
be determined by the Security Registrar in addition to, or in substitution for,
Stamp, all in accordance with the Securities and Exchange Act of 1934, as
amended, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
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All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 202 and 203, bear a legend in substantially the following
form:
'Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., 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.'
SECTION 205. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION, as Trustee
By ______________________________
Authorized Officer
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ARTICLE THREE
THE SECURITIES
SECTION 301. 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. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303 of the Indenture, shall have not
been issued and sold by the Company and are therefore deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
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(6) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency or currencies, including composite currencies, in
which payment of the principal of and any premium and interest on the
Securities of the series shall be payable if other than the currency of the
United States of America;
(11) if the amount of payments of principal of and any premium or
interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(13) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depository for such Global Security or Securities, which Depository shall
be a clearing agency registered under the Securities Exchange Act of 1934,
as amended; and
(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board
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Resolution referred to above and (subject to Section 303) set forth in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
At the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman, its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at the time such signatures were affixed the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities. Except as otherwise provided in
this Article, the Trustee shall thereupon authenticate and deliver, or cause to
be authenticated and
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delivered, said Securities pursuant to the Company Order without any further
action by the Company. In authenticating (or causing authentication of) such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, prior
to the initial authentication of such Securities, and (subject to Section 601)
shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution, in each
case certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any, relating thereto;
(c) an Officers' Certificate setting forth the form and terms of the
Securities of such series and stating that all conditions precedent
provided for in this Indenture relating to the issuance of such Securities
have been complied with, that no Event of Default with respect to any
series of Securities has occurred and is continuing and that the issuance
of such Securities is not and will not result in (i) an Event of Default or
an event or condition which, upon the giving of notice (or the acquisition
of knowledge) or the lapse of time or both, would become an Event of
Default or (ii) a default under the provisions of any other instrument or
agreement by which the Company is bound; and
(d) an Opinion of Counsel stating
(i) that the form of such Securities has been established by or
pursuant to the authority granted in a Board Resolution as permitted by
Section 201 or by a supplemental indenture as permitted by this
Indenture in conformity with the provisions of this Indenture;
(ii) that the terms of such Securities have been established by or
pursuant to the authority granted in a Board Resolution as permitted by
Section 301 or by a supplemental indenture as permitted by this
Indenture in conformity with the provisions of this Indenture;
(iii) that such Securities, when authenticated and delivered by or
on behalf of the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general
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principles of equity and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such
Securities;
(iv) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(v) that the issuance of such Securities will not materially
contravene the charter or by-laws of the Company or result in any
material violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement for borrowed
money known to such counsel by which the Company or any of its
subsidiaries is bound;
(vi) that all laws, requirements and conditions precedent in
respect of the execution and delivery by the Company of such Securities
and the related supplemental indenture, if any, have been complied with
and that authentication and delivery of such Securities and the
execution and delivery of the related supplemental indenture, if any, by
the Trustee will not violate the terms of this Indenture;
(vii) that this Indenture is qualified under the Trust Indenture
Act; and
(viii) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver, or
cause to be authenticated and delivered, any Securities if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith shall determine that such action would 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.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order, Officers' Certificate and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series of such
document are delivered at or prior to the time of authentication upon original
issuance of the first Security of such series to be issued.
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Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) directing such cancellation and stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor of authorized
denominations. 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.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the 'Security Register') in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfer of Securities. The Trustee is hereby
appointed 'Security Registrar' for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that 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 Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and of like tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and of like tenor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar and be duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
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The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Global Security shall be exchangeable
pursuant to this Section 305 for Securities registered in the names of Persons
other than the Depository for such Security or its nominee only if (i) such
Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time such Depository ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, (ii) the Company executes and delivers to the Trustee a Company Order
that such Global Security shall be so exchangeable or (iii) there shall have
occurred and be continuing an Event of Default with respect to the Securities.
Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such Depository
shall direct.
Notwithstanding any other provision in this Indenture, a Global Security
may not be transferred except as a whole by the Depository with respect to such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor of the Depository or a nominee of
such successor.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such
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destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called 'Defaulted Interest') shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective
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Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, 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.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever
and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein
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expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
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
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided
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for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
'Event of Default', wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
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(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series, and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a 'Notice of Default' hereunder;
or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed in excess of $25,000,000 by the Company
(including a default with respect to Securities of any series other than
that series) or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any such
indebtedness for money borrowed by the Company (including this Indenture),
whether such indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable, without such acceleration having been rescinded or
annulled 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 that series a written notice specifying
such default and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a 'Notice of Default'
hereunder; provided, however, that, if such default shall be remedied or
cured by the Company or waived by the holders of such indebtedness, then
the Event of Default hereunder by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without any action on the
part of the Trustee or any of the Holders; and provided further, that,
subject to the provisions of Sections 601 and 602, the Trustee shall not be
deemed to have knowledge of such default unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such default or (B)
the Trustee shall have received written notice thereof from the Company,
from any
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Holder, from the holder of any such indebtedness or from the trustee under
any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such Notice of Default, which record date shall be at the close of business on
the day the Trustee receives such Notice of Default.
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The Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such Notice of Default, whether or not
such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, or their proxies, shall have joined in such Notice of Default prior
to the day which is 90 days after such record date, such Notice of Default shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new Notice of
Default identical to a Notice of Default which has been canceled pursuant to the
proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 501.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if any of the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
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(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor 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
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 502.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, 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 by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding
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relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and
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counsel, be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article 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 premium, if
any) or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such notice, which record date shall be at the close of
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business on the day the Trustee receives such notice. The Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to join in such notice, whether or not such Holders remain Holders after such
record date; provided, that unless the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have joined in such notice
prior to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new notice
identical to a notice which has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 512.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have waived
such default prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
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.
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SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
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(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 512, 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 with respect to the Securities of such
series; and
(3) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
(e) No provision of this Indenture shall require the Trustee to determine
the maximum interest rate permissible under applicable law.
(f) The provisions of Section 315(d)(2) of the Trust Indenture Act shall
not apply to this Indenture.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series known to a Responsible Officer charged with
responsibility for the administration of this trust, the Trustee shall transmit
by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to 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 on any Security of such series or
in the payment of any sinking fund installment with respect to Securities 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 or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and, provided further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof; and, provided further, that in the case of any default of
the character specified in Section 501(5) with respect to Securities of such
series, no such notice to Holders shall be given until at least 10 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.
The Trustee shall not be deemed to have knowledge of any Default or Event
of Default except (i) any Default or Event of Default found in Section 501(1),
(2) or (3) or (ii) any Default or Event of Default of which the Trustee shall
have received written notification or a Responsible Officer charged with the
administration of this Indenture shall have obtained actual knowledge, and such
notification shall not be deemed to include receipt of information obtained in
any report or other documents furnished under Section 704 of this Indenture,
which reports and documents the Trustee shall have no duty to examine.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such
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further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be liable for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent. any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Indemnification of Trustee.
The Company agrees
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(a) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its outside counsel and of all agents and other persons not regularly in
its employ) except any such expense, compensation, disbursement or advance
as may be attributable to its negligence or bad faith. The Trustee shall
give written notice of the incurrence of counsel fees and expenses in
excess of $10,000 in any 12-month period prior to the time such expenses,
compensation, disbursements or advances are incurred or made; provided,
however, that the failure of the Trustee to give such notice shall not
effect the Company's obligation to pay or reimburse the Trustee for such
fees and expenses; and
(c) to indemnify the Trustee and the officers, directors and employees
of the Trustee (the Trustee and such officers being hereinafter referred to
in this Section collectively as the 'Indemnified Parties' and individually
as an 'Indemnified Party') from and to hold each Indemnified Party harmless
against, any loss, liability, tax, assessment or other governmental charge
(other than taxes applicable to the Indemnified Parties' compensation
hereunder) or expenses (to the extent reasonable and documented) incurred
without negligence or bad faith on the part of any of the Indemnified
Parties, arising out of or in connection with the acceptance or
administration of this Indenture or the Trusts hereunder and the duties of
the Trustee hereunder ('Indemnified Liability'), and the reasonable costs
and expenses incurred by such Indemnified Party in the course of defending
itself against any such claims resulting in Indemnified Liability. Promptly
after receipt by an Indemnified Party of notice of any claim for
Indemnified Liability, such Indemnified Party shall, if a claim in respect
thereof is to be made against the Company, notify the Company in writing of
the commencement thereof; but the failure to so notify the Company shall
not relieve it from any liability which it may have to an Indemnified Party
otherwise than under this Indenture. In case any such claim for Indemnified
Liability shall be brought against any Indemnified Party and it shall
notify the Company thereof, the Company shall be entitled to participate in
the defense thereof and, to the extent that it shall wish, to assume the
defense thereof, with counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the Company may
designate. In any such event, any
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Indemnified Party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Company and the Indemnified Party shall
agree to the retention of such counsel at the expense of the Company, or
(ii) in the opinion of the counsel representing any Indemnified Party named
in such action representation of both the Indemnified Parties and the
Company by the same counsel would be inappropriate due to differing
interests between them. It is understood that the Company shall not, in
connection with any claim or related claims, be liable for the reasonable
fees and expenses of more than one separate counsel for all such
Indemnified Parties. Except as stated above, after notice from the Company
to such Indemnified Party of the Company's election so to assume the
defense thereof, the Company shall not be liable to such Indemnified Party
under this Indenture for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such Indemnified Party, in
connection with the defense thereof. The Company shall not be liable for
any settlement of any action or claim effected without its written consent.
The obligations of the Company under this Section to compensate and
indemnify the Indemnified Parties and to pay or reimburse each Indemnified Party
for expenses, disbursements and advances shall constitute an additional
obligation hereunder and shall survive the satisfaction and discharge of this
Indenture.
If the Trustee incurs expenses or renders services after the occurrence of
an Event of Default specified in clause (6) or (7) of Section 501 of this
Indenture, the expenses and the compensation for the services will be intended
to constitute Section 1008 expenses of administration under Title 11 of the
United States Bankruptcy Code or any other applicable federal or state law for
the relief of debtors.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the Securities of
that series in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 90-day period,
transmit
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by mail to all Holders of Securities of that series, as their names and
addresses appear in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series if
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Securities issued under this
Indenture, provided that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Securities of any series other
than that series or any indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture
or indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing hereon,
that trusteeship under this Indenture with respect to the Securities of
that series and such other series or such other indenture or indentures
is not so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of investors
to disqualify the Trustee from acting as such under this Indenture with
respect to the Securities
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of that series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of director of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise:
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company, not including the
Securities issued under this Indenture and securities issued under any
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other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7) or (8) of
this Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, so the extent that such securities included in such estate do
not exceed 2% of such voting securities or 25% of any such class of
security. Promptly after May 15 in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the above-
mentioned capacities as of such May 15. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest on any
of the Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
paragraph all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as
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though beneficially owned by the Trustee for the purposes of paragraphs
(6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9), inclusive, of
this Subsection shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms 'security' and 'securities' shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be 'in default'
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term 'underwriter', when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term 'director' means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
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(3) The term 'person' means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term 'trust' shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term 'voting security' means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affair of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term 'Company' means any obligor upon the Securities.
(6) The term 'executive officer' means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a 'person' in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
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(3) The term 'amount', when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term 'outstanding' means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to bc of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, 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 and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor
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Trustee with respect to the Securities of any series by mailing written notice
of such event by first-class mail, postage prepaid, to all Holders of Securities
of such series as their names and addresses appear in the Security Register.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
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 and 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 upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and
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each such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all 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.
(c) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as of such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, 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 shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
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successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, as Trustee
By ...................................
As Authenticating Agent
By ...................................
Authorized Officer
SECTION 615. Maintenance of Agency by Trustee.
The Trustee will maintain in The City of New York (a) a Paying Agent
acceptable to the Company where Securities may be presented or surrendered for
payment and (b) an Authenticating Agent where Securities may be surrendered for
registration of transfer or exchange.
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The Company hereby appoints the Trustee as Paying Agent and the Trustee
hereby accepts such appointment.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each Regular Record
Date for the Securities of any series (and on dates as specified as
contemplated by Section 301 for any series of Original Issue Discount
Securities which by their terms bear interest only after Maturity), a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Securities of such series as of each such
Regular Record Date (and as of dates as specified as contemplated by
Section 301 of this Indenture), and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as 'applicants') apply in
writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with
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other Holders with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall.
within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the
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Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
Within 60 days after each May 15, beginning with May 15, 1995, the Trustee
shall mail to each Holder, as provided in Section 313(c) of the Trust Indenture
Act, a brief report dated as of such May 15, if required by Section 313(a) of
the Trust Indenture Act.
SECTION 704. Reports by Company.
The Company 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; 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 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 by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, 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
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required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation 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 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 supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately 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, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be, shall take such
steps
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as shall be necessary effectively to secure the Securities equally and ratably
with (or prior to) all indebtedness secured thereby; and
(4) the Company has 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 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation 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
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the securities pursuant to the requirements of Section
1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) 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 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or 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
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, 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, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to 'the
Trustee' and concomitant changes in this Section and Section 1010, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities
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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.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
It shall not be necessary for any Act of Holders 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 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article 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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), and interest on, the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
If the Trustee fails to maintain the agencies required pursuant to Section
615, the Company will maintain in The City of New York an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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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, if the Trustee shall fail to maintain the
agencies required pursuant to Section 615, no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in The City of New York for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 1003. Money for 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 will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent, other than the Trustee, for any
series of Securities 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 will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default referred to
in clause (2) above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall 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 a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments, governmental
charges and levies imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax,
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assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1005. Maintenance of Principal Properties.
The Company will cause all Principal Properties to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent or restrict the sale,
abandonment or other disposition of any of such properties if such action is, in
the judgment of the Company, desirable in the conduct of the business of the
Company and its Subsidiaries as a whole and not disadvantageous in any material
respect to the Holders.
SECTION 1006. Statement as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, a written
statement (which shall not be deemed an Officers' Certificate and need not
conform with any of the provisions of Section 102) signed by the Chairman of the
Board, the Vice Chairman, the President or any Vice President of the Company and
by the Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary
of the Company, stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all of its obligations (including, without limitation, those
covenants and agreements contained in Sections 801, 802, 1005, 1007, 1008
and 1009) under this Indenture throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default known to him and the nature and status thereof.
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SECTION 1007. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company
and any Subsidiary; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1008. Limitation on Liens.
The Company will not, and will not permit any Subsidiary to, incur, issue,
assume or guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (notes, bonds, debentures or other similar
evidences of indebtedness from money borrowed being hereinafter in this Article
called 'Debt'), secured by pledge of, or mortgage or other lien on, any
Principal Property owned or leased by the Company or any Restricted Subsidiary,
or any shares of stock or Debt of any Restricted Subsidiary (pledges, mortgages
and other liens being hereinafter in this Article called 'Mortgage' or
'Mortgages'), except with respect to each series of Securities any Debt so
secured on the date of issuance of such series, without effectively providing
that the Securities of all series (together with, if the Company shall so
determine, any other Debt of the Company or such Subsidiary then existing or
thereafter created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt, so long as such
secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate amount of all such secured Debt which would otherwise be prohibited,
plus all Attributable Debt of the Company and its Restricted Subsidiaries in
respect of sale and leaseback transactions (as defined in Section 1009) which
would otherwise be prohibited by Section 1009 would not exceed the sum of 5% of
Consolidated Net Tangible Assets plus $50,000,000, provided, however, that this
Section shall not apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(2) Mortgages in favor of the Company or any Restricted Subsidiary;
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(3) Mortgages for taxes, assessments or governmental charges or
levies, in each case (i) not then due and delinquent or (ii) the validity
of which is being contested in good faith by appropriate proceedings; and
materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or
other like Mortgages, or deposits to obtain the release of such Mortgages;
(4) Mortgages to secure public or statutory obligations or to secure
payment of workmen's compensation or to secure performance in connection
with tenders, leases of real property, bids or contracts or to secure (or
in lieu of) surety or appeal bonds and Mortgages made in the ordinary
course of business for similar purposes;
(5) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price or construction cost thereof or to secure any Debt incurred prior to,
at the time of, or within 120 days after, the acquisition of such property
or shares or Debt or the completion of any such construction for the
purpose of financing all or any part of the purchase price or construction
cost thereof;
(6) Mortgages on timberlands in connection with an arrangement under
which the Company or the Company and one or more Restricted Subsidiaries
are obligated to cut or pay for timber in order to provide the party in
whose favor such Mortgage is created with a specified amount of money,
however determined; and
(7) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing clauses (1) to (6), inclusive; provided, that (i) such
extension, renewal or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such property)
and (ii) the Debt secured by such Mortgage at such time is not increased.
SECTION 1009. Limitation on Sales and Leasebacks.
The Company will not itself, and it will not permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Restricted
Subsidiary) or to which any such lender or investor is a party, providing for
the leasing by the Company or any such
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Restricted Subsidiary for a period, including renewals, in excess of three years
of any Principal Property owned by the Company or such Restricted Subsidiary
which has been or is to be sold or transferred, more than 120 days after the
acquisition thereof or after the completion of construction and commencement of
full operation thereof, by the Company or any such Restricted Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal Property
(herein referred to as a 'sale and leaseback transaction') unless either:
(1) the Company or such Restricted Subsidiary could create Debt
secured by a Mortgage on the Principal Property to be leased back in an
amount equal to the Attributable Debt with respect to such sale and
leaseback transaction without equally and ratably securing the Securities
of all series pursuant to Section 1008, or
(2) the Company within 120 days after the sale or transfer shall have
been made by the Company or by any such Restricted Subsidiary, applies an
amount equal to the greater of (i) the net proceeds of the sale of the
Principal Property sold and leased back pursuant to such arrangement or
(ii) the fair market value of the Principal Property so sold and leased
back at the time of entering into such arrangement (as determined by any
two of the following: the Chairman of the Board of the Company, its Vice
Chairman, its President, any Vice President of the Company, its Treasurer
and its Comptroller) to (i) the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in
such sale) having a value at least equal to the net proceeds of such sale
or (ii) the retirement of Funded Debt of the Company (and any retirement of
Securities of any series pursuant to this provision shall not be deemed to
constitute a refunding operation or anticipated refunding operation for the
purposes of any provision restricting any refunding operations with moneys
borrowed having an interest cost to the Company in excess of a certain
amount with respect to the Securities of such series); provided, that the
amount to be applied to the retirement of Funded Debt of the Company shall
be reduced by (a) the principal amount of any Securities of any series
delivered within 120 days after such sale to the Trustee for retirement and
cancellation, and (b) the principal amount of Funded Debt, other than the
Securities of any series, voluntary retired by the Company within 120 days
after such sale. Notwithstanding the foregoing, no retirement referred to
in this clause (2) may be effected by payment at maturity or pursuant to
any mandatory sinking fund payment or any mandatory prepayment provision.
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SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1004, 1005 and 1007 through 1009 with respect
to the Securities of any series if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such wavier shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any such term, provision or
condition. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
such term, provision or condition hereunder, whether or not such Holders remain
Holders after such record date; provided, that unless the Holders of at least 66
2/3% in principal amount of the Outstanding Securities of such series shall have
waived such term, provision or condition prior to the date which is 90 days
after such record date, any such waiver previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less
78
<PAGE>
than all the Securities of any series, 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. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series 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 (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
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 amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
79
<PAGE>
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
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 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1106. 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. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest 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 relevant Record Dates according to their
terms and the provisions of Section 307.
80
<PAGE>
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor 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 Global Security is so surrendered, such new
Security so issued shall be a new Global Security.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the requirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a 'mandatory sinking fund
payment' and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an 'optional sinking
fund payment'. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. 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.
81
<PAGE>
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, 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 Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 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 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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.
82
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
UNION CAMP CORPORATION
By ..................................
NAME:
TITLE:
Attest:
[SEAL]
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION
By ..................................
NAME:
TITLE:
Attest:
[SEAL]
83
<PAGE>
<TABLE>
<S> <C> <C>
STATE OF ss.:
COUNTY OF }
</TABLE>
On the day of , 1994, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he is of UNION CAMP CORPORATION, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
.....................................
NOTARY PUBLIC
[SEAL]
<TABLE>
<S> <C> <C>
STATE OF ss.:
COUNTY OF }
</TABLE>
On the day of , 1994, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he is of NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
.....................................
NOTARY PUBLIC
[SEAL]
84
<PAGE>
EXHIBIT 5
WHITE & CASE
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
KK:DCD:AS October 28, 1994
Union Camp Corporation
1600 Valley Road
Wayne, New Jersey 07470
Dear Sirs:
We refer to the Registration Statement on Form S-
3 (the 'Registration Statement') under the Securities Act
of 1933, as amended (the 'Securities Act'), in the form in
which it is to be filed today by Union Camp Corporation, a
Virginia corporation ('Union Camp), with the Securities
and Exchange Commission (the 'Commission'), relating to up
to $150,000,000 aggregate principal amount of Union Camp's
debt securities consisting of debentures, notes or other
unsecured evidences of indebtedness (the 'Securities') to
be issued from time to time pursuant to the terms of an
Indenture, to be dated as of November 1, 1994, between
Union Camp and NationsBank of Georgia, National
Association, as Trustee, filed as Exhibit 4 to the
Registration Statement (the 'Indenture'), and to be sold to
or through underwriters, to other purchasers or through
agents. The terms of the Securities are to be approved and
the manner of sale is to be determined in additional
proceedings proposed to be taken by a committee of Union
Camp's Board of Directors.
We have examined the originals, or photostatic or
certified copies, of such records of Union Camp,
certificates of officers of Union Camp and of public
officials and such other documents as we have deemed
relevant and necessary as the basis for the opinion set
forth below. We have relied upon such certificates of
public officials and such certificates of officers of Union
Camp and statements and information furnished by officers
of Union Camp with respect to the accuracy of material
factual matters contained therein which were not
independently established. In such examination we have
assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the
conformity to original documents of all documents submitted
to us as photostatic or certified copies, and the
authenticity of the originals of such copies.
Based upon our examination mentioned above,
subject to the assumptions stated, and subject to such
proposed additional proceedings being taken prior to the
issuance of the Securities and to the terms of the
Securities being otherwise in compliance with then
applicable law, it is our opinion that the Securities, upon
issuance and sale by Union Camp as contemplated in the
Registration Statement and any amendments and Prospectus
Supplements thereto, will have been duly authorized by
Union Camp and that the Securities, when duly executed,
authenticated, issued and delivered against payment
therefor in accordance with the Indenture, will constitute
valid and legally binding obligations of Union Camp.
We consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference
to our firm appearing under the caption 'Legal Matters' in
the Prospectus forming part of the Registration Statement.
In giving this consent, we do not thereby admit that we are
within the category of persons whose consent is required
under Section 7 of the Securities Act or the Rules and
Regulations of the Commission.
Very truly yours,
WHITE & CASE
<PAGE>
EXHIBIT 12
UNION CAMP CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, --------------------------------------------------------
1994 1993 1992 1991 1990 1989
----------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Income Before Income Taxes, Extraordinary
Item and Accounting Changes............ $ 61,245* $100,138 $ 65,410 $204,988 $366,018 $469,278
Adjustments:
Capitalized Interest................ (9,737) (8,206) (13,380) (62,701) (68,514) (21,967)
Amortization of Capitalized
Interest.......................... 7,413 14,125 13,329 9,918 10,322 9,867
----------- -------- -------- -------- -------- --------
Total.......................... $ 58,921 $106,057 $ 65,359 $152,205 $307,826 $457,178
----------- -------- -------- -------- -------- --------
Fixed Charges:
Interest & amortization of debt
discount and expense and premium
on all indebtedness............... $ 64,427 $133,117 $149,620 $144,451 $ 99,742 $ 69,767
Imputed Interest on non-capitalized
lease payments**.................. 5,000 9,664 10,100 5,360 4,340 3,941
----------- -------- -------- -------- -------- --------
Total Fixed Charges............ $ 69,427 $142,781 $159,720 $149,811 $104,082 $ 73,708
----------- -------- -------- -------- -------- --------
Total Earnings................. $ 128,348 $248,838 $225,079 $302,016 $411,908 $530,886
----------- -------- -------- -------- -------- --------
----------- -------- -------- -------- -------- --------
Ratio of Earnings to Fixed Charges....... 1.8*** 1.7 1.4**** 2.0 4.0 7.2
</TABLE>
- ------------
* Includes $2.2 million representing minority interest's share of income in
certain majority-owned subsidiaries. Prior years have not been restated,
due to immateriality.
** The basis for calculating imputed interest has been expanded to include
additional leases. Years prior to 1992 have not been restated to reflect
this change, since the impact on the fixed charge coverage ratio would be
immaterial.
*** Included in earnings for 1994 was a $34.7 million pre-tax gain on the sale
of a 32% minority interest in the Company's Bush Boake Allen flavor and
fragrance business, partially offset by a non-recurring charge of $14
million to reflect the write down of the carrying value of certain
non-strategic assets. If such items had not occurred, the ratio of earnings
to fixed charges would have been 1.6.
**** Included in earnings for 1992 was a non-recurring charge of $57 million to
cover estimated costs to enhance workplace safety. If such charges had not
occurred, the ratio of earnings to fixed charges would have been 1.8.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement
on Form S-3 our report dated February 11, 1994, except as
to Note 13, which is as of February 22, 1994, which appears
on page 31 of the 1993 Annual Report to Stockholders of
Union Camp Corporation, which is incorporated by reference
in Union Camp Corporation's Annual Report on Form 10-K for
the year ended December 31, 1993. We also consent to the
incorporation by reference of our report on the Financial
Statement Schedules, which appears on page 27 of such
Annual Report on Form 10-K. We also consent to the
reference to us under the heading 'Experts' in such
Prospectus.
Price Waterhouse
Morristown, NJ
October 28, 1994
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM T-1
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)
_______________
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
58-0193243
(I.R.S. employer identification no.)
600 PEACHTREE STREET, N.E.
SUITE 900
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
_____________________________
JOHN T. HENDERSON
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION
AREA ADMINISTRATION
6000 FELDWOOD ROAD
COLLEGE PARK, GEORGIA 30349
(404) 774-6074
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
_______________
with a copy to:
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION
CORPORATE TRUST
600 PEACHTREE STREET, SUITE 900
ATLANTA, GA 30308
________________________
UNION CAMP CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
VIRGINIA 13-5652423
(STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1600 VALLEY ROAD
WAYNE, NEW JERSEY 07470
(201) 628-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF PRINCIPAL EXECUTIVE OFFICE)
__________________________________________
DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
_________________________________________________________________
<PAGE>
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.
THE COMPTROLLER OF THE CURRENCY,
WASHINGTON, D.C.
FEDERAL RESERVE BANK OF ATLANTA
104 MARIETTA STREET, N.W.
ATLANTA, GEORGIA
FEDERAL DEPOSIT INSURANCE CORPORATION
WASHINGTON, D.C.
(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.
List below all exhibits filed as a part of this statement of
eligibility.
(1) A copy of the Articles of Association of the trustee as
now in effect. (See Exhibit 1 to Form T-1, Exhibit 25
to Registration No. 33-50233, which is incorporated
herein by reference.)
(2) A copy of the certificate of authority of the trustee
to commence business. (See Exhibit 2 to Form T-1,
Exhibit 25 to Registration No. 33-50233, which is
incorporated herein by reference.)
(3) A copy of the authorization of the trustee to exercise
corporate trust powers. (See Exhibit 3 to Form T-1,
Exhibit 25 to Registration No. 33-50233, which is
incorporated herein by reference.)
(4) A copy of the existing by-laws of the trustee, as
amended to date. (See Exhibit 4 to Form T-1, Exhibit
25 to Registration No. 33-50233, which is incorporated
herein by reference.)
(6) The consent of the trustee required by Section 321(b)
of the Trust Indenture Act of 1939.
(7) A copy of the latest report of condition of the trustee
published pursuant to law or the
requirements of its supervising or examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, NationsBank of Georgia, National Association, a corporation organized
and existing under the laws of the United States of America, has duly caused
this statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Atlanta and the
State of Georgia, on the 11th day of October, 1994.
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION
/S/ SANDRA CARREKER
By: .................................
SANDRA CARREKER
VICE PRESIDENT
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939 in connection with the proposed issuance of Union Camp Corporation Debt
Securities, NationsBank of Georgia, National Association hereby consents that
reports of examinations by Federal, State, Territorial or District Authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION
/S/ SANDRA CARREKER
By: .................................
SANDRA CARREKER
VICE PRESIDENT
<PAGE>
EXHIBIT 7 TO FORM T-1
Comptroller of the Currency
Administrator of National Banks
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the NATIONSBANK OF
GEORGIA, N.A. OF ATLANTA, in the state of Georgia, at the close of business on
June 30, 1994 published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter Number 13281,
Comptroller of the Currency, Atlanta District.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
STATEMENT OF RESOURCES AND LIABILITIES THOUSANDS
- ------------------------------------------------------------------------------ --------------------
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................................... 1,374,394.
Securities:
Held-to-maturity securities....................................................... 1,400,450.
Available-for-sale securities..................................................... 2,596,333.
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold................................................................ 722,053.
Securities purchased under agreements to resell................................... 25,137.
Loans and lease financing receivables:
Loans and leases, net of unearned income................................. 9,720,178.
LESS: Allowance for loan and lease losses................................ 125,574.
Loans and leases, net of unearned income, allowance, and reserve....................... 9,594,604.
Assets held in trading accounts............................................................. 14,030.
Premises and fixed assets (including capitalized leases).................................... 189,444.
Other real estate owned..................................................................... 13,498.
Customers' liability to this bank on acceptances outstanding................................ 242,877.
Intangible assets........................................................................... 42,602.
Other assets................................................................................ 203,161.
TOTAL ASSETS................................................................................ 16,418,583.
LIABILITIES
Deposits:
In domestic offices.................................................................... 8,648,513.
Noninterest-bearing...................................................... 2,928,628.
Interest-bearing......................................................... 5,719,885.
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
Federal funds purchased................................................................ 4,328,175.
Securities sold under agreements to repurchase......................................... 579,516.
Demand notes issued to the U.S. Treasury.................................................... 149,135.
Trading Liabilities......................................................................... 33,871.
Other borrowed money:
With original maturity of one year or less............................................. 697,596.
With original maturity of more than one year........................................... 557.
Bank's liability on acceptances executed and outstanding.................................... 242,877.
Other liabilities........................................................................... 701,149.
TOTAL LIABILITIES........................................................................... 15,381,389.
</TABLE>
<TABLE>
<CAPTION>
EQUITY CAPITAL
<S> <C>
Common stock................................................................................. 97,747.
Surplus...................................................................................... 232,803.
Undivided profits and capital reserves....................................................... 722,862.
Less: Net unrealized loss on marketable equity securities.................................... (16,218)
Total equity capital......................................................................... 1,037,194.
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL.......................... 16,418,583.
</TABLE>
<PAGE>
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We 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 and is true and correct.
<TABLE>
<S> <C>
Hugh M. Chapman
L.L. Gellerstedt, III Directors
Harold A. Dawson
</TABLE>
