<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1996
REGISTRATION NO.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
TUPPERWARE CORPORATION TUPPERWARE FINANCE COMPANY B.V.
(EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER)
DELAWARE THE NETHERLANDS
(STATE OR OTHER JURISDICTION (STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION) OF INCORPORATION OR ORGANIZATION)
36-40623333 NOT APPLICABLE
(I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION
NUMBER) NUMBER)
14901 S. ORANGE BLOSSOM TRAIL 14901 S. ORANGE BLOSSOM TRAIL
ORLANDO, FLORIDA 32837 ORLANDO, FLORIDA 32837
(407) 826-5050 (407) 826-5050
(ADDRESS, INCLUDING ZIP CODE, AND (ADDRESS, INCLUDING ZIP CODE, AND
TELE- TELE-
PHONE NUMBER, INCLUDING AREA CODE, PHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OF REGISTRANT'S PRINCIPAL EXECUTIVE
OFFICES) OFFICES)
THOMAS M. ROEHLK
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TUPPERWARE CORPORATION
P.O. BOX 2353
ORLANDO, FLORIDA 32802
(407) 826-5050
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
STEVEN SUTHERLAND JAMES J. JUNEWICZ
SIDLEY & AUSTIN MAYER, BROWN & PLATT
ONE FIRST NATIONAL PLAZA 190 SOUTH LASALLE STREET
CHICAGO, IL 60603 CHICAGO, IL 60603
(312) 853-7000 (312) 782-0600
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities, Warrants to Purchase Debt
Securities and Guarantees of Debt
Securities.................................. $200,000,000 100% $200,000,000 $68,966
- --------------------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee. Any
offering of Debt Securities or Warrants denominated in any foreign
currency or foreign currency units will be treated as the equivalent in
U.S. dollars based on the exchange rate applicable to the purchase of such
Debt Securities or Warrants.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
The Registrants currently intend to commence an offering of Notes promptly
after this Registration Statement is declared effective and have filed a
Preliminary Prospectus Supplement, substantially in the form in which the
Registrants currently anticipate the Prospectus Supplement relating to such
Notes will be used, together with a Prospectus relating to the offering of
Debt Securities and Warrants generally. If the Registrants issue other Debt
Securities or Warrants pursuant to such Prospectus, a Prospectus Supplement
relating to such other Debt Securities or Warrants will be filed with the
Commission.
<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 SUPPLEMENT 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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS SUPPLEMENT (Subject to Completion, Issued September 16, 1996)
(To Prospectus dated September , 1996)
$100,000,000
Tupperware Finance Company B.V.
% NOTES DUE
Payment of principal and interest unconditionally guaranteed by
Tupperware Corporation
-----------
Interest payable and
-----------
THE NOTES WILL NOT BE REDEEMABLE PRIOR TO MATURITY AND WILL NOT BE ENTITLED TO
ANY SINKING FUND. THE NOTES WILL BE REPRESENTED BY A REGISTERED GLOBAL
SECURITY REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITARY") OR ITS NOMINEE. BENEFICIAL INTERESTS IN THE REGISTERED GLOBAL
SECURITY WILL BE SHOWN ON, AND TRANSFERS WILL BE EFFECTED THROUGH,
RECORDS MAINTAINED BY THE DEPOSITARY OR ITS PARTICIPANTS. SEE
"DESCRIPTION OF THE NOTES AND GUARANTEES."
-----------
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 SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
-----------
PRICE % AND ACCRUED INTEREST
-----------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(1)(3)
---------- -------------- -------------
<S> <C> <C> <C>
Per Note................................ % % %
Total................................... $ $ $
</TABLE>
- -----
(1) Plus accrued interest from , 1996.
(2) Tupperware has agreed to indemnify the Underwriters against certain
liabilities, including certain liabilities under the Securities Act of
1933.
(3) Before deducting estimated expenses of $ payable by Tupperware.
-----------
The Notes are offered, subject to prior sale, when, as and if accepted by the
Underwriters and subject to approval of certain legal matters by Mayer, Brown &
Platt, counsel for the Underwriters. It is expected that delivery of the Notes
will be made on or about , 1996 through the book-entry facilities of the
Depositary against payment therefor in immediately available funds.
-----------
MORGAN STANLEY & CO. GOLDMAN, SACHS & CO.
Incorporated
, 1996
<PAGE>
NO PERSON IS AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. NEITHER THIS PROSPECTUS
SUPPLEMENT NOR THE PROSPECTUS CONSTITUTES AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES OFFERED HEREBY TO
ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE ANY SUCH OFFER
OR SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS NOR ANY SALE MADE HEREBY SHALL
UNDER ANY CIRCUMSTANCE IMPLY THAT THE INFORMATION CONTAINED HEREIN IS CORRECT
AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
----------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Tupperware Corporation.................................................... S-3
Tupperware Finance Company B.V............................................ S-3
Use of Proceeds........................................................... S-3
Capitalization............................................................ S-3
Selected Financial Information of Tupperware Corporation.................. S-4
Ratio of Earnings to Fixed Charges of Tupperware Corporation.............. S-4
Tupperware Corporation Pro Forma Consolidated Statement of Income......... S-5
Management's Discussion and Analysis of Financial Condition and Results of
Operations............................................................... S-6
Business of Tupperware Corporation........................................ S-13
Description of the Notes and Guarantees................................... S-16
Underwriters.............................................................. S-17
PROSPECTUS
Available Information..................................................... 2
Incorporation of Certain Documents By Reference........................... 2
Tupperware Corporation.................................................... 3
Tupperware Finance Company B.V............................................ 3
Enforceability of Civil Liabilities and Related Matters................... 3
Use of Proceeds........................................................... 3
Ratio of Earnings to Fixed Charges of Tupperware Corporation.............. 3
Description of Debt Securities, Warrants and Guarantees................... 5
Plan of Distribution...................................................... 17
Legal Matters............................................................. 19
Experts................................................................... 19
</TABLE>
----------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES OFFERED
HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-2
<PAGE>
TUPPERWARE CORPORATION
Tupperware Corporation ("Tupperware") is a worldwide direct selling consumer
products company engaged in the manufacture and sale of Tupperware products.
The core of Tupperware's product line consists of food storage containers
which preserve freshness through the well-known Tupperware seals. Tupperware's
products are distributed worldwide through the "direct selling" method of
distribution, in which products are sold to consumers outside traditional
retail store channels. Tupperware has operations in more than 60 countries and
its products are sold in more than 100 foreign countries and in the United
States. For the past five fiscal years, sales in foreign countries
represented, on average, 81% of total Tupperware revenues.
Tupperware became an independent public company on May 31, 1996 when its
common stock was distributed (the "Distribution") to the shareholders of
Premark International, Inc. ("Premark"). Tupperware is a Delaware corporation
and its common stock is traded on the New York Stock Exchange. The address and
telephone number of its corporate headquarters are 14901 South Orange Blossom
Trail, Orlando, Florida 32837, (407) 826-5050.
TUPPERWARE FINANCE COMPANY B.V.
Tupperware Finance Company B.V. (the "Company") was organized under the
Dutch Civil Code on September 12, 1996. The Company is a wholly-owned
subsidiary of Tupperware Finance Holding Company B.V., which is a wholly-owned
subsidiary of Tupperware. The Company was organized to provide financing to
Tupperware and other subsidiaries or affiliates of Tupperware.
The registered office of the Company is at Rijksstraatweg 113-117, NL-3632
AB Loenen a/d Vecht, Netherlands. The Company's telephone number is (407) 826-
5050.
USE OF PROCEEDS
The net proceeds of the sale of the Notes offered hereby are estimated to be
$ . Such net proceeds will be advanced to Tupperware for the
repayment of a portion of its outstanding commercial paper (with a weighted
average interest rate of approximately 5 1/2%).
CAPITALIZATION
The following table sets forth the consolidated short-term debt and
capitalization of Tupperware at June 29, 1996 and as adjusted to reflect the
issuance of the Notes and the application of the estimated net proceeds
therefrom as described in "Use of Proceeds."
<TABLE>
<CAPTION>
ACTUAL ADJUSTED
(IN MILLIONS) ------ --------
<S> <C> <C>
Short-term borrowings and current portion of long-term debt..... $185.2 $185.2
====== ======
Long-term debt:
Historical (1)................................................ $101.9 $
Notes offered hereby.......................................... -- 100.0
------ ------
101.9
------ ------
Shareholders' equity............................................ 245.0 245.0
------ ------
Total capitalization........................................ $346.9 $
====== ======
</TABLE>
- --------
(1) In the actual column, historical long-term debt includes $100.0 million of
short-term commercial paper borrowings at June 29, 1996 due to
Tupperware's ability and intent to keep this amount of short-term
borrowings outstanding for more than one year from that date.
S-3
<PAGE>
SELECTED FINANCIAL INFORMATION OF TUPPERWARE CORPORATION
The following table sets forth certain selected historical financial
information of Tupperware which has been derived from the financial statements
of Tupperware for the three years ended December 30, 1995 and the 26-week
periods ended June 29, 1996 and July 1, 1995. The historical financial
information does not reflect the Distribution, until it occurred on May 31,
1996, and may not be indicative of Tupperware's future performance as a stand-
alone company. The information set forth below should be read in conjunction
with "Tupperware Corporation Pro Forma Consolidated Statement of Income,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the consolidated financial statements of Tupperware and
related notes incorporated by reference into the accompanying Prospectus.
<TABLE>
<CAPTION>
26 WEEKS ENDED YEAR ENDED
------------------ --------------------------
JUNE 29, JULY 1, DEC. 30, DEC. 31, DEC. 25,
1996 1995 1995 1994 1993
(IN MILLIONS) -------- ------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net sales............... $708.0 $681.2 $1,359.4 $1,274.6 $1,171.8
Income before income
taxes.................. 112.1 104.2 224.9 191.2 148.4
Net income.............. 82.2 78.4 171.4 149.2 117.9
BALANCE SHEET DATA
Working capital
(deficit).............. 17.0(1) 113.0 88.1 72.9 (49.4)(2)
Total assets............ 987.3 972.4 944.0 882.6 785.1
Long-term debt.......... 101.9 0.4 0.4 0.5 45.6
Shareholders' equity.... 245.0 429.5 415.6 395.1 163.3
</TABLE>
- --------
(1) Includes $162.1 million of domestic borrowings, which were used primarily
in funding a $284.9 million special dividend payment to Premark on May 24,
1996.
(2) Includes $105.0 million of the $150.0 million of 8 3/8% notes that were
called at par on February 1, 1994.
RATIO OF EARNINGS TO FIXED CHARGES OF TUPPERWARE CORPORATION
The following table sets forth the ratio of earnings to fixed charges of
Tupperware for the periods indicated:
<TABLE>
<CAPTION>
26 WEEKS ENDED YEAR ENDED
---------------- --------------------------------------------
JUNE 29, JULY 1, DEC. 30, DEC. 31, DEC. 25, DEC. 26, DEC. 28,
1996 1995 1995 1994 1993 1992 1991
-------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Historical.............. 14.2x 14.9x 14.9x 10.9x 5.8x --(1) 3.3x
Pro forma for
Distribution........... 7.8x 7.3x
</TABLE>
- --------
(1) For the fiscal year ended December 26, 1992, fixed charges exceeded
earnings by $42.6 million. Pre-tax income was reduced by a $136.7 million
charge primarily related to consolidation of manufacturing capacity and
restructuring the U.S. distribution system. Excluding this charge, the
ratio would have been 4.0.
For the purpose of calculating the ratios, earnings consist of income (loss)
before income taxes and cumulative effect of accounting changes to which has
been added fixed charges less capitalized interest. Historical fixed charges
consist of interest expense, interest capitalized, and one third of rental
expense, the approximate portion representing interest. In calculating the
ratios that are pro forma for the Distribution, fixed charges have been
increased for the assumed incremental interest on borrowings incurred in
conjunction with the Distribution, which include the borrowings that will be
repaid with the proceeds of this Offering (see Note 2(a) to the Tupperware
Corporation Pro Forma Consolidated Statement of Income).
S-4
<PAGE>
TUPPERWARE CORPORATION
PRO FORMA CONSOLIDATED STATEMENT OF INCOME
(UNAUDITED)
The unaudited Pro Forma Consolidated Statement of Income for the year ended
December 30, 1995 and the 26-week period ended June 29, 1996 presents the
consolidated results of operations of Tupperware assuming that the transactions
contemplated by the Distribution had been completed as of the beginning of
Tupperware's 1995 and 1996 fiscal years, respectively. The adjustments required
to reflect such assumptions are described in Note 2 to the Tupperware
Corporation Pro Forma Consolidated Statement of Income (Unaudited) and are set
forth in the "Pro Forma Adjustments" columns.
The unaudited Pro Forma Consolidated Statement of Income should be read in
conjunction with the historical financial statements of Tupperware incorporated
by reference into the accompanying Prospectus. The pro forma information
presented is for illustrative purposes only. It is not intended to reflect
future results of operations and may not reflect what the results of operations
would have been had the Distribution occurred as assumed herein.
<TABLE>
<CAPTION>
26 WEEKS ENDED JUNE 29, 1996 YEAR ENDED DECEMBER 30, 1995
------------------------------- ----------------------------------
PRO FORMA PRO PRO FORMA PRO
(IN MILLIONS, EXCEPT PER HISTORICAL ADJUSTMENTS FORMA HISTORICAL ADJUSTMENTS FORMA
SHARE AMOUNTS) ---------- ----------- ------ ---------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
Net sales............... $708.0 $ -- $708.0 $1,359.4 $ -- $1,359.4
------ ----- ------ -------- ------ --------
Costs and expenses:
Costs of products
sold................. 254.7 -- 254.7 481.5 -- 481.5
Delivery, sales and
administrative
expense.............. 336.3 -- 336.3 653.5 -- 653.5
Interest expense...... 2.5 7.0 (2a) 9.5 3.1 16.9 (2a) 20.0
Interest income....... (1.9) -- (1.9) (5.0) -- (5.0)
Costs associated with
becoming an
independent company.. 2.6 -- 2.6 -- -- --
Other expense, net.... 1.7 -- 1.7 1.4 -- 1.4
------ ----- ------ -------- ------ --------
Total costs and
expenses........... 595.9 7.0 602.9 1,134.5 16.9 1,151.4
------ ----- ------ -------- ------ --------
Income before income
taxes.................. 112.1 (7.0) 105.1 224.9 (16.9) 208.0
Provision for income
taxes.................. 29.9 (2.7)(2b) 27.2 53.5 (6.6)(2b) 46.9
------ ----- ------ -------- ------ --------
Net income.............. $ 82.2 $(4.3) $ 77.9 $ 171.4 $(10.3) $ 161.1
====== ===== ====== ======== ====== ========
Net income per common
and common equivalent
share.................. $ 1.23 $ 2.55
Common and common
equivalent shares...... 63.1 63.1
</TABLE>
Note 1.
The accompanying unaudited Pro Forma Consolidated Statement of Income
reflects all adjustments that, in the opinion of management, are necessary to
present a fair statement of results of operations. This information does not
include certain disclosures required under generally accepted accounting
principles and, therefore, should be read in conjunction with Tupperware's
historical financial statements and notes thereto.
(Notes continued on following page)
S-5
<PAGE>
Note 2.
The pro forma adjustments to the accompanying financial information for the
26 weeks ended June 29, 1996 and the year ended December 30, 1995, are
described below:
(a) To record the increase in interest expense from the borrowings incurred to
fund the payment of a $284.9 million special dividend to Premark and the
funding of 65% ($12.0 million) of the amount necessary to pay the dividend
declared on Premark common stock on May 1, 1996 (the "Payments"). The
Payments are assumed to have been funded by $171.9 million of short-term
borrowings with variable interest rates averaging 5.6%; $100.0 million of
long-term borrowings with a fixed interest rate of 7.25%; and $25.0 million
of available cash. The effect of a one-eighth percentage point change in
the interest rate on variable rate borrowings on annual interest expense
and net income would be approximately $0.3 million and $0.2 million,
respectively.
(b) To record the estimated income tax benefit on the income effect of pro
forma adjustment (a) above at the combined federal, state, and local income
tax rate of 39%.
Note 3.
Net income per share information is based upon 63.1 million common and common
equivalent shares. For all periods prior to the Distribution, the number of
common and common equivalent shares assumed is the number of common and common
equivalent shares as of the date of the Distribution.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of Tupperware's results of operations and financial
condition should be read in conjunction with the unaudited Pro Forma
Consolidated Statement of Income and related notes thereto, the Selected
Financial Information of Tupperware Corporation, the consolidated financial
statements of Tupperware and related notes incorporated by reference into the
accompanying Prospectus and the other information included elsewhere in this
Prospectus Supplement and the accompanying Prospectus.
OVERALL--RESULTS OF OPERATIONS
The Distribution
On November 1, 1995, Premark's board of directors authorized Premark
management to proceed with a plan to establish the Tupperware business as an
independent company through a stock distribution to Premark's shareholders. The
Distribution was effected on May 31, 1996 through a stock dividend, which was
tax free to Premark's shareholders pursuant to a favorable ruling received from
the Internal Revenue Service. During the second quarter of 1996 Tupperware
incurred $2.6 million of pretax costs in connection with the Distribution.
FIRST HALF 1996 VS. FIRST HALF 1995
Net Sales and Net Income
Net sales for the six months ended June 29, 1996 increased by 4% to $708.0
million in 1996 from $681.2 million in 1995. Pro forma net income increased
6.1% to $77.9 million, or $1.23 per share, from $73.4 million, or $1.16 per
share, last year. For the first half, foreign exchange had a negative impact on
the sales and segment profit comparisons of $31.8 million and $6.6 million,
representing 5 and 6 percentage points, respectively. Excluding the costs
associated with becoming an independent company, pro forma net income was $79.5
million, or $1.26 per share, up 8.2%. Net income was $82.2 million compared
with $78.4 million last year.
The six month period reflects substantial sales improvement and a sharp
increase in segment profit in the Americas. Europe had modestly lower sales and
a large decrease in segment profit due to weakness in the first
S-6
<PAGE>
quarter. Asia Pacific's sales for the first six months of 1996 were even with
the prior year as strong improvement in local currency terms was offset by the
impact of a stronger U.S. dollar, while the region's profits increased
substantially with and without the unfavorable impact of foreign exchange. For
the year-to-date period, international operations accounted for 85% of
Tupperware's sales in both 1996 and 1995, and 95% and 97% of its segment profit
in 1996 and 1995, respectively.
Costs and Expenses
The cost of products sold in relation to sales increased to 36.0% for the six
months ended June 29, 1996, versus 34.6% for the comparable 1995 period. The
increase reflects lower margins in Europe associated with second quarter
promotional programs, and higher product costs in Latin America due to
increased third party product sourcing.
Delivery, sales and administrative expense as a percentage of sales was 47.5%
in the first half of 1996 compared with 50.2% in the first half of 1995. The
improvement was primarily the result of more efficient promotional spending and
a lower operating expense structure as a percentage of sales in Latin America.
Net Interest Expense
In the first six months of 1996, Tupperware incurred net interest expense of
$0.6 million. For the comparable 1995 period, Tupperware earned net interest
income of $1.0 million. In connection with the Distribution, Dart Industries
Inc. ("Dart"), a wholly-owned subsidiary of Tupperware, paid Premark a special
dividend of $284.9 million on May 24, 1996. Tupperware incurred a significant
amount of incremental borrowings to fund the majority of the special dividend,
which will result in higher interest expense in future periods.
Tax Rate
The effective tax rate for the first half of 1996 was 26.7%, compared with
24.8% for 1995. For the year ended December 30, 1995, the rate was 23.8%. The
increase in the 1996 rate is due to a lower 1996 benefit from repatriating
foreign earnings and the absence of the 1995 benefit from the resolution of
certain international and domestic tax audit contingencies. These factors were
only partially offset by the 1996 benefit from reducing the valuation allowance
for U.S. federal deferred tax assets.
Regional Results
Europe
<TABLE>
<CAPTION>
FOREIGN
EXCHANGE
26 IMPACT
26 WEEKS WEEKS INCREASE POSITIVE PERCENT
ENDED ENDED (DECREASE) (NEGATIVE) OF TOTAL
JUNE 29, JULY 1, --------------- ------------- ----------
1996 1995 DOLLAR PERCENT DOLLAR PP/1/ 1996 1995
(DOLLARS IN MILLIONS) -------- ------- ------ ------- ------ ----- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Sales................... $301.9 $314.1 $(12.2) (4)% $(9.4) (3) 43% 46%
Segment profit.......... 70.5 80.7 (10.2) (13) (2.5) (3) 56 69
</TABLE>
- --------
/1/As used in this section, "pp" means percentage point.
The decreases in European sales and segment profit were primarily the result
of lower volume in Germany in the first quarter of 1996 as a result of the weak
economy and lower sales during the important promotional period early in the
year. These factors more than offset substantial improvement in volume in
Germany in the second quarter, the result of an innovative promotional program,
in spite of continued economic weakness. Foreign exchange had a negative impact
on the comparisons throughout the region.
S-7
<PAGE>
Americas
<TABLE>
<CAPTION>
FOREIGN
EXCHANGE
26 IMPACT
26 WEEKS WEEKS INCREASE POSITIVE PERCENT
ENDED ENDED (DECREASE) (NEGATIVE) OF TOTAL
JUNE 29, JULY 1, --------------- ----------- ----------
1996 1995 DOLLAR PERCENT DOLLAR PP 1996 1995
(DOLLARS IN MILLIONS) -------- ------- ------ ------- ------ --- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Sales:
U.S..................... $103.3 $105.3 $(2.0) (2)% -- -- 15% 15%
Other................... 133.1 91.6 41.5 45 $(5.7) (10) 18 14
------ ------ ----- ----- --- ---
$236.4 $196.9 $39.5 20 $(5.7) (4) 33% 29%
====== ====== ===== ===== === ===
Segment profit:
U.S..................... $ 6.6 $ 3.3 $ 3.3 98% -- -- 5% 3%
Other................... 20.0 8.7 11.3 131 $(1.2) (36) 16 7
------ ------ ----- ----- --- ---
$ 26.6 $ 12.0 $14.6 122 $(1.2) (24) 21% 10%
====== ====== ===== ===== === ===
</TABLE>
The improvement in profit in the United States reflects the implementation of
several strategic initiatives to simplify operations and increase sales force
productivity. These initiatives resulted in lower promotional costs and
operating expenses throughout the first half of 1996. These factors were mostly
offset by higher distribution costs in the second quarter.
In the Americas, excluding the United States, the improvements relate to
higher volume in Mexico, Brazil and Argentina, where the active sales forces
more than doubled, in response to successful programs to increase sales force
size. In addition to the positive impact of higher volume, segment profit also
improved due to a lower operating expense structure in relation to the higher
level of business and more focused promotional spending. These factors more
than offset increased product costs resulting from a higher level of third
party sourcing of product due to capacity constraints related to the higher
sales volume. The region's production capacity is being increased. Foreign
exchange had a negative impact on the region's comparisons, primarily due to
weakness in the Mexican peso.
Asia Pacific
<TABLE>
<CAPTION>
FOREIGN
EXCHANGE
26 IMPACT
26 WEEKS WEEKS INCREASE POSITIVE PERCENT
ENDED ENDED (DECREASE) (NEGATIVE) OF TOTAL
JUNE 29, JULY 1, --------------- ----------- ----------
1996 1995 DOLLAR PERCENT DOLLAR PP 1996 1995
(DOLLARS IN MILLIONS) -------- ------- ------ ------- ------ --- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Sales.................... $169.7 $170.2 $(0.5) -- $(16.7) (11) 24% 25%
Segment profit........... 28.6 24.0 4.6 19% (2.9) (17) 23 21
</TABLE>
The operational increases reflect a better sales mix in Japan due to a
promotion on cookware, volume improvement in Korea as the sales force responded
to strong incentives, and higher volume in Australia on the strength of
improved recruiting. The profit improvement reflects the sales mix in Japan and
the higher volume in Korea, along with more favorable manufacturing costs.
These factors were partially offset by the unfavorable impact of foreign
exchange.
1995 VS. 1994 AND 1994 VS. 1993
Net Sales and Net Income
Net sales in 1995 of $1.4 billion were 7% higher than 1994 net sales of $1.3
billion due to improvement in international operations and a $33.2 million
benefit of favorable foreign exchange, which more than offset a decline in the
United States. In 1994, sales increased by 9% over 1993 sales of $1.2 billion,
led by Asia Pacific and Europe. Net income increased by 15%, to $171.4 million
in 1995, compared with $149.2 million in 1994, also on the strength of
international operations and an $8.5 million benefit of favorable foreign
exchange.
S-8
<PAGE>
Partially offsetting these factors was lower profit in the United States. Net
income in 1994 improved by 27% from $117.9 million in 1993 as a result of the
higher sales, along with lower cost of products and lower interest expense. In
1995 and 1994, respectively, 85% and 82% of Tupperware's sales and 96% and 92%
of its segment profit were from operations outside the United States.
Costs and Expenses
The cost of products sold in relation to sales was 35.4%, 36.2%, and 37.5%
in 1995, 1994, and 1993, respectively. 1995's improvement was the result of
reduced manufacturing costs along with selected price increases, which
outweighed significant increases in raw material costs. The 1994 decrease
resulted from manufacturing efficiencies in Asia Pacific and Latin America.
Delivery, sales, and administrative expense as a percentage of sales was
48.1%, 48.9%, and 48.7% in 1995, 1994, and 1993, respectively. The ratio
improved in 1995 compared with 1994 due to the higher 1995 sales while costs
were contained.
Tax Rate
The effective tax rates for 1995, 1994, and 1993, were 23.8%, 22.0%, and
20.6%, respectively. The 1995 increase reflects the absence of the 1994
reduction of valuation allowances against certain deferred tax assets,
partially offset by the effect of the favorable resolution of certain tax
contingencies. The higher effective rate in 1994 compared with 1993 reflects a
lower realization of foreign tax benefits.
Net Interest
In 1995 and 1994, Tupperware had net interest income of $1.9 million and
$0.2 million, respectively. In 1993, Tupperware had net interest expense of
$12.6 million.
1995 VS. 1994
Regional Results
<TABLE>
<CAPTION>
FOREIGN
EXCHANGE
IMPACT PERCENT
YEAR YEAR INCREASE POSITIVE OF
ENDED ENDED (DECREASE) (NEGATIVE) TOTAL
DEC. 30, DEC. 31, --------------- ----------- ----------
1995 1994 DOLLAR PERCENT DOLLAR PP 1995 1994
(DOLLARS IN MILLIONS) -------- -------- ------ ------- ------ --- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Sales:
Europe................ $ 595.1 $ 540.1 $ 55.0 10% $ 56.9 11 44% 42%
Americas:
United States ...... 208.6 228.8 (20.2) (9) -- -- 15 18
Americas, other than
United States ..... 200.6 176.4 24.2 14 (39.9) (23) 15 14
-------- -------- ------ ------ --- ---
409.2 405.2 4.0 1 (39.9) (10) 30 32
-------- -------- ------ ------ --- ---
Asia Pacific ......... 355.1 329.3 25.8 8 16.2 5 26 26
-------- -------- ------ ------ --- ---
$1,359.4 $1,274.6 $ 84.8 7 $ 33.2 3 100% 100%
======== ======== ====== ====== === ===
<CAPTION>
FOREIGN
EXCHANGE
IMPACT PERCENT
YEAR YEAR INCREASE POSITIVE OF
ENDED ENDED (DECREASE) (NEGATIVE) TOTAL
DEC. 30, DEC. 31, --------------- ----------- ----------
1995 1994 DOLLAR PERCENT DOLLAR PP 1995 1994
-------- -------- ------ ------- ------ --- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Segment Profit:
Europe ............... $ 156.8 $ 125.0 $ 31.8 25% $ 15.3 12 64% 61%
Americas:
United States....... 10.3 16.0 (5.7) (36) -- -- 4 8
Americas, other than
United States ..... 19.4 15.7 3.7 24 (9.8) (63) 8 8
-------- -------- ------ ------ --- ---
29.7 31.7 (2.0) (6) (9.8) (31) 12 16
-------- -------- ------ ------ --- ---
Asia Pacific ......... 59.4 46.3 13.1 28 3.1 7 24 23
-------- -------- ------ ------ --- ---
$ 245.9 $ 203.0 $ 42.9 21 $ 8.6 4 100% 100%
======== ======== ====== ====== === ===
</TABLE>
S-9
<PAGE>
Europe
The sales increase in 1995 was due to the favorable impact of foreign
exchange, largely attributable to Germany. Additionally, on a local currency
basis, a 20% sales increase in Italy and sales decreases in the United Kingdom
and Spain of 27% and 31%, respectively, occurred but did not significantly
affect the year-to-year comparison for the region either individually or in the
aggregate.
The segment profit increase reflects the benefit of foreign exchange, as well
as higher profit in Germany on a local currency basis, a smaller loss in the
United Kingdom, and lower area administrative costs. Germany's segment profit
increased by 14% from the impact of foreign exchange and by an additional 7%
from operations due primarily to improved gross margins. Operating efficiencies
in the United Kingdom and Spain resulted in a reduction in the loss in the
United Kingdom and a small profit in Spain, despite the lower sales in these
countries.
Americas
United States sales and segment profit in 1995 decreased due to lower volume.
The number of consultants grew by 4%, and the average active sales force grew
by 2%, but there was a large decrease in the productivity of the sales force.
Productivity in 1995 was down due to weakness in response by the sales force to
certain promotional programs. Steps have been taken to improve those
promotional programs in 1996.
In the Americas, excluding the United States, the sales increase was led by
operating improvements in Brazil, Mexico and Venezuela. In Latin America, a net
of 69 new distributors were added in 1995. The total number of consultants more
than doubled, and the average active sales force grew by 68%. Sales grew by
169% in Brazil and 66% in Venezuela. Mexico's sales increased by 39% in local
currency terms, although they decreased overall due to the negative impact of
the peso devaluation, which reduced sales by $40.0 million.
The negative impact of foreign exchange on the segment profit comparison of
the Americas, other than the United States, was due to the Mexican peso's
devaluation. Profit in Brazil increased substantially, from a small base in
1994, and Venezuela had a profit in 1995 versus a loss in 1994. Despite a
weaker Mexican peso, the improvement in Latin America, particularly in Brazil,
was attributable to relatively stable economic conditions, a focus on
recruiting and distributor expansion, streamlining of operations, and
simplified promotional programs.
Asia Pacific
The sales increase in Asia Pacific was the result of favorable foreign
exchange, along with operational improvements in Korea, the Philippines, and
some of the region's smaller markets. Sales in Japan increased by $8.2 million
overall, but, excluding the effect of foreign exchange, decreased by $4.9
million due to an estimated $9 million impact from the Kobe earthquake at the
beginning of the year. Sales in Korea and the Philippines increased by $7.1
million and $6.0 million, respectively. The increase in the Philippines was the
result of a substantial increase in the average active sales force, while the
Korean increase reflects a strong improvement in sales force productivity.
The segment profit increase was due primarily to a 52% increase in Korea and
a profit in Australia versus a loss in 1994. The increase in Korea was due to
the higher sales, along with improved margins. Australia's favorable profit
comparison was primarily due to lower promotional costs and the absence of
1994's costs incurred to shut down a manufacturing plant. Profit in Japan
increased by 8% compared with 1994, despite the negative impact of the Kobe
earthquake which affected profit by approximately $5 million.
S-10
<PAGE>
1994 VS. 1993
Regional Results
<TABLE>
<CAPTION>
FOREIGN
EXCHANGE
IMPACT
YEAR YEAR INCREASE POSITIVE PERCENT
ENDED ENDED (DECREASE) (NEGATIVE) OF TOTAL
DEC. 31, DEC. 25, -------------- ----------- ----------
1994 1993 DOLLAR PERCENT DOLLAR PP 1994 1993
(DOLLARS IN MILLIONS) -------- -------- ------ ------- ------ --- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Sales:
Europe ............... $ 540.1 $ 505.1 $ 35.0 7% $ 9.3 2 42% 43%
Americas:
United States ...... 228.8 225.4 3.4 2 -- -- 18 19
Americas, other than
United States ..... 176.4 154.4 22.0 14 (12.2) (8) 14 13
-------- -------- ------ ------ --- ---
405.2 379.8 25.4 7 (12.2) (3) 32 32
-------- -------- ------ ------ --- ---
Asia Pacific ......... 329.3 286.9 42.4 15 17.7 6 26 25
-------- -------- ------ ------ --- ---
$1,274.6 $1,171.8 $102.8 9 $ 14.8 1 100% 100%
======== ======== ====== ====== === ===
<CAPTION>
FOREIGN
EXCHANGE
IMPACT
YEAR YEAR INCREASE POSITIVE PERCENT
ENDED ENDED (DECREASE) (NEGATIVE) OF TOTAL
DEC. 31, DEC. 25, -------------- ----------- ----------
1994 1993 DOLLAR PERCENT DOLLAR PP 1994 1993
-------- -------- ------ ------- ------ --- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Segment Profit:
Europe ............... $ 125.0 $ 110.3 $ 14.7 13% $ 2.3 2 61% 62%
Americas:
United States ...... 16.0 12.5 3.5 28 -- -- 8 7
Americas, other than
United States ..... 15.7 15.7 -- -- (2.1) (13) 8 9
-------- -------- ------ ------ --- ---
31.7 28.2 3.5 12 (2.1) (7) 16 16
-------- -------- ------ ------ --- ---
Asia Pacific ......... 46.3 40.3 6.0 15 3.4 8 23 22
-------- -------- ------ ------ --- ---
$ 203.0 $ 178.8 $ 24.2 13 $ 3.6 2 100% 100%
======== ======== ====== ====== === ===
</TABLE>
Europe
The 1994 sales improvement was due primarily to operational improvements in
Germany, Austria, and Switzerland along with the favorable impact of foreign
exchange. These factors were partially offset by a decrease in sales in the
United Kingdom. Sales in Germany increased by 13%, of which 3 percentage
points were due to foreign exchange. The operational improvement in Germany
was due to higher volume, despite slower sales in the fourth quarter as
distributors reduced their inventories. Sales in Austria and Switzerland
increased by 18% and 23%, respectively, as a result of larger sales forces.
Sales in the United Kingdom fell by 19% reflecting a lower number of recruits.
The region's segment profit increase was led by improvement in Germany,
along with favorable foreign exchange, which was partially offset by higher
area manufacturing costs and a larger loss in the United Kingdom. The 26%
increase in profit in Germany was attributable to the higher sales, reflecting
a larger active sales force, improved recruiting, and lower promotional costs.
The loss in the United Kingdom was nearly three times greater than the 1993
loss reflecting the lower level of sales and higher promotional costs.
Americas
United States sales rose slightly in 1994, as a successful effort to
increase the size of the sales force was substantially offset by lower sales
force productivity. Profit improved as higher sales and reduced promotional
spending offset the negative impact on margins from the lower level of
production.
The sales improvement in the Americas, excluding the United States, reflects
Brazil's sales increase of more than 150%, and Mexico's sales increase of 29%
in local currency terms and 17% including the negative impact of foreign
exchange. The improvement resulted from increasing the number of distributors,
managers, and dealers in both countries, as well as aggressive product pricing
in Brazil.
S-11
<PAGE>
Segment profit improved by 15% in Mexico, despite a 12 percentage point
negative impact from foreign exchange, and Brazil's profit was an improvement
from a loss in 1993. The profit improvements in these countries followed from
the higher sales but were offset by a loss in Canada from higher product costs
and declines in Argentina and Venezuela.
Asia Pacific
Asia Pacific's sales increase reflects a benefit from favorable foreign
exchange, along with operational improvements in Japan, the Philippines, and
Korea, which were partially offset by lower sales in Australia. The 20%, 24%,
and 18% increases in the sales of Japan, the Philippines and Korea,
respectively, were the result of successful recruiting efforts and
corresponding increases in sales force size, and favorable foreign exchange in
Japan, which was responsible for 10 percentage points of that country's
improvement. The lower sales in Australia resulted from ineffective promotional
programs.
Segment profit rose in Japan, Korea, and the Philippines by 29%, 60% and 33%,
respectively, while Australia had a loss in 1994 compared with a profit in
1993. The improvements in Japan, Korea, and the Philippines were the result of
the higher sales volume, generated through increased promotional spending,
along with favorable foreign exchange in Japan, which accounted for 11
percentage points of the increase. The loss in Australia was the result of
decreased sales along with a $3.8 million charge to shut down a manufacturing
plant.
FINANCIAL CONDITION
Under the distribution agreement between Premark, Tupperware and Dart,
entered into in connection with the Distribution, Dart paid a special dividend
to Premark of $284.9 million on May 24, 1996.
Prior to the Distribution, Tupperware's domestic cash requirements, including
working capital expenditures, were financed by Premark through its centralized
cash management system. On May 17, 1996, Tupperware and certain of its
subsidiaries entered into a 5-year $300 million unsecured multicurrency credit
facility. This facility was used in funding the dividend payment to Premark,
but in late June, all outstanding borrowings were refinanced through the
issuance of commercial paper. Amounts available under the multicurrency credit
facility and through commercial paper borrowings and foreign uncommitted lines
of credit, which totalled $152.1 million at June 29, 1996, along with cash
generated by operating activities are expected to be adequate to finance any
additional working capital needs and capital expenditures.
Net cash provided by operating activities increased to $58.0 million for the
first six months of 1996 compared with $33.6 million for the first six months
of 1995. The improvement reflects the higher level of earnings for the 1996
period, along with a smaller net increase in working capital. Net cash used in
investing activities was for capital expenditures and totaled $39.9 million and
$25.6 million in the first halves of 1996 and 1995, respectively.
Working capital decreased to $17.0 million as of June 29, 1996, compared with
$88.1 million as of December 30, 1995. This decrease was the result of a net
increase in short-term borrowings of $105.3 million, primarily in connection
with funding the special dividend to Premark. An additional $100.0 million of
short-term borrowings was classified as non-current at June 29, 1996, due to
Tupperware's ability and intent to keep this amount of short-term borrowings
outstanding for more than one year. The most significant factor offsetting this
decrease in working capital was an increase in net accounts receivable of $33.2
million. However, days sales outstanding from operations was modestly lower at
the end of the second quarter of 1996 compared with the end of the second
quarter of 1995.
S-12
<PAGE>
BUSINESS OF TUPPERWARE CORPORATION
Tupperware is a worldwide direct selling consumer products company engaged in
the manufacture and sale of Tupperware products.
Principal Products. Tupperware conducts its business through a single
business segment, manufacturing and marketing a broad line of highest-quality
consumer products for the home and for personal care. The core of Tupperware's
product line consists of food storage containers which preserve freshness
through the well-known Tupperware seals. Tupperware also has an established
line of children's educational toys, serving products and gifts. The line of
products has expanded over the years into kitchen, home storage and organizing
uses with products such as Modular Mates(TM), Fridge Stackables(TM),
OneTouch(TM) canisters and many specialized containers. In recent years,
Tupperware has expanded its offerings in the food preparation and service areas
through the addition of a number of products, including double colanders,
tumblers and mugs, mixing and serving bowls, serving centers, microwaveable
cooking and serving products, and kitchen utensils.
Tupperware continues to introduce new designs and colors in its product
lines, and to extend existing products into new markets around the world. The
development of new products varies in different markets around the world in
order to address differences in cultures, lifestyles, tastes and needs of the
markets. New product development and introduction will continue to be an
important part of Tupperware's strategy.
Products sold by Tupperware are primarily produced by Tupperware in its
manufacturing facilities around the world. In some markets, Tupperware sources
certain products from third parties and/or contracts with local manufacturers
to manufacture its products, utilizing high-quality molds which are generally
supplied by Tupperware. Promotional items provided at product demonstrations
include items obtained from outside sources.
Markets. Tupperware's business is operated on the basis of three geographic
segments: Europe, the Americas and Asia Pacific. Tupperware has operations in
more than 60 countries and its products are sold in more than 100 foreign
countries and in the United States. For the past five fiscal years, sales in
foreign countries represented, on average, 81% of total Tupperware revenues.
During 1995, Tupperware entered several new international markets, including
Poland and several countries in southern Africa. During 1996, Tupperware has
established operations in China, additional Eastern European countries and
several Middle Eastern countries. Additionally, Tupperware has received
approval to do business in India. Market penetration varies throughout the
world. Several "developing" areas which have low penetration, such as Latin
America, Asia and Eastern Europe, provide significant growth potential for
Tupperware. Tupperware's strategy continues to include aggressive expansion
into new markets throughout the world.
Distribution of Tupperware Products. Tupperware's products are distributed
worldwide through the "direct selling" method of distribution, in which
products are sold to consumers outside traditional retail store channels. The
distributorship system is intended to facilitate the timely distribution of
products to the consumer, and to establish uniform practices regarding the use
of Tupperware(TM) trademarks and the administrative arrangements with
Tupperware, such as order entry and delivery, payment, recruitment and training
of dealers.
Tupperware products are sold directly to distributors or dealers throughout
the world. Distributors are granted the right to market Tupperware products
using the demonstration method and utilizing the Tupperware trademark. The vast
majority of Tupperware's distributorship system is composed of distributors,
managers and dealers (known in the United States as consultants) who are
independent contractors and not employees of Tupperware. In certain limited
circumstances Tupperware owns the distributorship for a period of time until an
independent distributor can be installed, in order to maintain market presence.
Key aspects of Tupperware's strategy are expanding its business by enlarging
the number of distributors, and at the same time increasing the business of
existing distributors. Under the Tupperware system, distributors recruit, train
and motivate a large sales force to cover the distributor's geographic area.
Managers are developed
S-13
<PAGE>
and promoted by distributors to assist the distributor in recruiting, training
and motivating dealers, as well as continuing to hold their own demonstrations.
As of December 30, 1995, the Tupperware distribution system had over 1,670
distributors, 44,000 managers and 790,000 dealers worldwide. The dealer force
continues to increase each year.
Tupperware relies primarily on the "demonstration" method of sales, which is
designed to enable the purchaser to appreciate through demonstration the
features and benefits of Tupperware products. Demonstrations, which are
sometimes referred to as "Tupperware parties," are held in homes, offices,
social clubs and other locations. In excess of 13 million demonstrations were
held in 1995 worldwide. Tupperware products are also promoted through monthly
brochures mailed to persons invited to attend Tupperware parties and various
other types of demonstrations. Sales of Tupperware products are supported by
Tupperware through a program of sales promotions, sales and training aids and
motivational conferences for the independent sales force. In addition, to
support its sales force, Tupperware utilizes catalogs, magazine advertising and
toll-free telephone ordering, which helps increase its sales levels with hard-
to-reach customers.
The distribution of products to consumers is primarily the responsibility of
distributors, who are required to maintain their own inventory of Tupperware
products, the necessary warehouse facilities and delivery systems. In certain
markets, Tupperware offers distributors the use of a delivery system of direct
product shipment to consumers or dealers, which is intended to reduce the
distributor's investment in inventory and enable distributors to be more cost-
efficient.
Competition. There are two primary competitive factors which affect
Tupperware's business: (i) competition with other "direct sales" companies for
sales personnel and demonstration dates and (ii) competition in the markets for
food storage and serving containers, toys, personal care items, and gifts in
general. Tupperware believes that it holds a significant market share in each
of these markets in many countries. This has been facilitated by innovative
product development and a large, dedicated worldwide sales force. Tupperware's
competitive strategies are to continue to expand its direct selling
distribution system, and to provide high-quality, high-value products
throughout the world.
Employees. Tupperware employs approximately 7,500 people, of whom
approximately 1,000 are based in the United States. Tupperware's United States
work force is not unionized. In certain countries, Tupperware's work force is
covered by collective arrangements decreed by statute. The terms of most of
these arrangements are determined on an annual basis. Additionally,
approximately 138 Tupperware manufacturing employees in the Australian mold
manufacturing operation are covered by a collective bargaining agreement which
is negotiated annually. There have been no work stoppages or threatened work
stoppages in over three years and Tupperware believes its relations with its
employees to be good. The independent consultants, dealers, managers and
distributors engaged in the direct sale of Tupperware products are not
employees of Tupperware.
Research and Development. For fiscal years ended 1995, 1994 and 1993,
Tupperware spent approximately $6.3 million, $8.9 million and $9.8 million,
respectively, on research and development activities for new products.
Raw Materials. Products manufactured by Tupperware require plastic resins
meeting its specifications. These resins are purchased through various
arrangements with a number of large chemical companies located throughout
Tupperware's markets. As a result, Tupperware has not experienced difficulties
in obtaining adequate supplies and generally has been successful in mitigating
the effects of increases in market resin prices. Research and development
relating to resins used in Tupperware products is performed by both Tupperware
and its suppliers.
Trademarks and Patents. Tupperware considers its trademarks and patents to be
of material importance to its business. However, except for the Tupperware(TM)
trademark, Tupperware is not dependent upon any single patent or trademark, or
group of patents or trademarks. The trademark on the Tupperware name is
registered on
S-14
<PAGE>
a country by country basis. The current duration for such registration ranges
from seven years to 15 years; however, each such registration may be renewed an
unlimited number of times. The patents and trademarks used in Tupperware's
business are registered and maintained on a worldwide basis, with a variety of
durations. Tupperware has followed the practice of applying for design and
utility patents with respect to most of the significant patentable
developments.
Environmental Laws. Compliance with federal, state and local environmental
protection laws has not in the past had, and is not expected to have in the
future, a material effect upon Tupperware's capital expenditures, liquidity,
earnings or competitive position.
Other. Tupperware sales do not vary significantly on a quarterly basis;
however, third quarter sales are generally lower than the other quarters in any
year due to vacations by Tupperware's sales consultants and their customers as
well as Tupperware's reduced promotional activities during such quarter. Sales
generally increase in the fourth quarter as it includes traditional gift giving
occasions in many of Tupperware's markets and as children return to school and
households refocus on activities that include the use of Tupperware's products.
There are no working capital practices or backlog conditions which are material
to an understanding of Tupperware's business. Tupperware's business is not
dependent on a small number of customers, nor is any of its business subject to
renegotiation of profits or termination of contracts or subcontracts at the
election of the United States government.
S-15
<PAGE>
DESCRIPTION OF THE NOTES AND GUARANTEES
GENERAL
The following description of the terms of the Notes offered hereby
supplements and should be read in conjunction with the statements under
"Description of Debt Securities, Warrants and Guarantees" in the accompanying
Prospectus.
The Notes offered hereby will be unsecured obligations of the Company, will
be limited to $100,000,000 aggregate principal amount, will be unconditionally
guaranteed as to payment of principal and interest by Tupperware and will
mature on , 20 . The Notes will bear interest at the rate of %
per annum from , 1996. Interest on the Notes will be payable on
and in each year, commencing on , 1997, to the persons in
whose names the Notes are registered at the close of business on the preceding
and , respectively. The Notes will be issued in fully
registered form only in the denomination of $1,000 and multiples thereof.
The Notes will be subject to the provisions of the Indenture described under
"Description of Debt Securities, Warrants and Guarantees--Defeasance and
Discharge, Covenant Defeasance" in the accompanying Prospectus.
Subject to certain exceptions and limitations, the Company will pay as
additional interest on the Notes such additional amounts as are necessary in
order that the net payment by the Company or a paying agent of the principal
and interest on the Notes, after deduction for any present or future tax,
assessment or governmental charge of The Netherlands or a political subdivision
or taxing authority thereof or therein, imposed by withholding with respect to
payment, will not be less than the amount provided in the Notes to then be due
and payable. Tupperware has unconditionally guaranteed the Company's payment of
additional amounts. See "Description of Debt Securities, Warrants and
Guarantees--Payment of Additional Amounts" in the accompanying Prospectus.
BOOK-ENTRY PROCEDURES
Upon issuance, all Notes will be represented by a fully registered global
note (the "Global Note"). The Global Note will be deposited with, or on behalf
of, The Depository Trust Company, as Depositary, and registered in the name of
the Depositary or a nominee thereof. Unless and until it is exchanged in whole
or in part for Notes in definitive form, the Global Note may not be transferred
except as a whole by the Depositary. A further description of the Depositary's
procedures with respect to the Global Note is set forth in the accompanying
Prospectus under "Description of Debt Securities, Warrants and Guarantees--
Book-Entry System."
REDEMPTION
The Notes are not redeemable prior to their maturity, except that the Notes
may be redeemed, as a whole but not in part, at a redemption price equal to
100% of their principal amount, together with interest thereon to the date
fixed for redemption, if, at any time, the Company or Tupperware has been or
will be required to pay additional amounts with respect to the Notes. See
"Description of Debt Securities, Warrants and Guarantees--Optional Tax
Redemption" in the accompanying Prospectus.
S-16
<PAGE>
UNDERWRITERS
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated the date hereof, the Underwriters named below have severally
agreed to purchase, and the Company has agreed to sell to them, severally, the
respective principal amounts of Notes set forth opposite their respective names
below:
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
UNDERWRITER NOTES
----------- ------------
<S> <C>
Morgan Stanley & Co. Incorporated........................... $ 50,000,000
Goldman, Sachs & Co......................................... 50,000,000
------------
Total................................................... $100,000,000
============
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to pay for and accept delivery of the Notes are subject to receipt
of an opinion of counsel and to certain other conditions. The Underwriters are
obligated to take and pay for all the Notes if any are taken.
The Underwriters propose initially to offer part of the Notes directly to the
public at the public offering price set forth on the cover page hereof and part
to certain dealers at a price that represents a concession not in excess of
% of the principal amount of the Notes. Any Underwriter may allow, and such
dealers may reallow, a concession not in excess of % of the principal
amount of the Notes to certain other dealers. After the initial offering of the
Notes, the offering price and other selling terms may from time to time be
varied by the Underwriters.
The Company does not intend to apply for listing of the Notes on a national
securities exchange, but has been advised by the Underwriters that they
presently intend to make a market in the Notes, as permitted by applicable laws
and regulations. The Underwriters are not obligated, however, to make a market
in the Notes and any such market making may be discontinued at any time at the
sole discretion of the Underwriters. Accordingly, no assurance can be given as
to the liquidity of, or trading markets for, the Notes.
The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
The Underwriters have provided and will in the future continue to provide
investment banking and other financial services for the Company and certain of
its affiliates in the ordinary course of business for which they have received
and will receive customary compensation.
S-17
<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 PRELIMINARY PROSPECTUS AND THE ACCOMPANYING +
+PROSPECTUS SUPPLEMENT 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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS ISSUED SEPTEMBER 16, 1996 (SUBJECT TO COMPLETION)
TUPPERWARE FINANCE COMPANY B.V.
DEBT SECURITIES
AND
WARRANTS TO PURCHASE DEBT SECURITIES
TUPPERWARE CORPORATION
GUARANTOR
Tupperware Finance Company B.V., (the "Company") from time to time may offer
one or more series of unsecured notes, debentures or other debt securities
("Debt Securities") and warrants ("Warrants") to purchase Debt Securities (the
Debt Securities and Warrants being hereinafter collectively called the
"Securities") having an aggregate initial offering price of up to U.S.
$200,000,000, or the equivalent thereof if any of the Securities are
denominated in a foreign currency or a foreign currency unit. All Debt
Securities will be unconditionally guaranteed as to payment of principal,
premium, if any, and interest by Tupperware Corporation ("Tupperware"). The
guarantees of the Debt Securities (the "Guarantees") will constitute unsecured
obligations of Tupperware and will rank pari passu with other unsecured
indebtedness of Tupperware.
The Debt Securities will 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 one or
more supplements to this Prospectus (a "Prospectus Supplement"). The Debt
Securities and Warrants may be sold for U.S. Dollars, foreign currencies or
foreign currency units, and the principal of and any interest on the Debt
Securities may be payable in U.S. Dollars, foreign currencies or foreign
currency units. The specific designation, aggregate principal amount, the
currency or currency unit for which the Securities may be purchased, the
currency or currency unit in which the principal and any interest is payable,
the rate (or method of calculation) and time of payment of any interest,
authorized denominations, maturity, offering price, any redemption terms or
other specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the Prospectus Supplement. With regard to
the Warrants, if any, in respect of which this Prospectus is being delivered,
the Prospectus Supplement sets forth a description of the Debt Securities for
which each Warrant is exercisable and the offering price, if any, exercise
price, duration, detachability and other terms of the Warrants.
The Company may sell Securities through underwriting syndicates led by one or
more managing underwriters or through one or more underwriting firms acting
alone, to or through dealers, acting as principals for their own account or as
agents, and also may sell Securities directly to other purchasers. See "Plan of
Distribution". The names of any underwriters, dealers or agents involved in the
sale of the Securities in respect to which this Prospectus is being delivered
and their compensation will be set forth in the Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a 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 SUPPLEMENT OR
THE PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1996.
<PAGE>
AVAILABLE INFORMATION
Tupperware is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at the Northwestern
Atrium Center, 500 West Madison Street, Chicago, Illinois 60661 and Seven
World Trade Center, New York, New York 10048. Copies of such material can also
be obtained at prescribed rates by writing to the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington D.C. 20549. In addition,
such material can be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005. The Commission maintains a
Web site (http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding registrants who file electronically
with the Commission.
The Company and Tupperware have filed with the Commission a combined
registration statement on Form S-3 (the "Registration Statement," which term
encompasses any amendments thereof) under the Securities Act of 1933, as
amended, with respect to the Securities and the Guarantees offered hereby. As
permitted by the rules and regulations of the Commission, this Prospectus does
not contain all of the information set forth in the Registration Statement and
the exhibits and schedules thereto to which reference is hereby made.
The Company has requested that the Commission grant to the Company an order
exempting it from the reporting obligations of Sections 13 and 15(d) of the
Exchange Act. If such order is granted, the Company will not file reports
under the Exchange Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by Tupperware (File No. 1-11657)
with the Commission pursuant to the Exchange Act and are incorporated herein
by reference and made a part of this Prospectus:
(a) Amendment No. 4 on Form 10/A4 to Tupperware's Registration Statement on
Form 10 (No. 1-11657) filed with the Commission on May 21, 1996,
including the exhibits thereto; and
(b) Tupperware's Quarterly Reports on Form 10-Q for the periods ended March
30, 1996 and June 29, 1996.
All documents filed by Tupperware with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities
shall be deemed to be incorporated herein by reference and made a part of this
Prospectus from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Tupperware and the Company will provide without charge to each person to
whom this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all documents incorporated herein by reference
(without exhibits other than exhibits specifically incorporated by reference).
Requests should be directed to Tupperware Corporation, P.O. Box 2353, Orlando,
Florida 32802, Attention: Corporate Secretary's Office (telephone number:
(407) 826-5050).
2
<PAGE>
TUPPERWARE CORPORATION
Tupperware is a worldwide direct selling consumer products company engaged
in the manufacture and sale of Tupperware products. The core of Tupperware's
product line consists of food storage containers which preserve freshness
through the well-known Tupperware seals. Tupperware's products are distributed
worldwide through the "direct selling" method of distribution, in which
products are sold to consumers outside traditional retail store channels.
Tupperware has operations in more than 60 countries and its products are sold
in more than 100 foreign countries and in the United States. For the past five
fiscal years sales in foreign countries represented, on average, 81% of total
Tupperware revenues.
Tupperware became an independent public company on May 31, 1996 when its
common stock was distributed to the shareholders of Premark International,
Inc. ("Premark"). Tupperware is a Delaware corporation and its common stock is
traded on the New York Stock Exchange. The address and telephone number of its
corporate headquarters are 14901 South Orange Blossom Trail, Orlando, Florida
32837, (407) 826-5050.
TUPPERWARE FINANCE COMPANY B.V.
The Company was organized under the Dutch Civil Code on September 12, 1996.
The Company is a wholly-owned subsidiary of Tupperware Finance Holding Company
B.V., which is a wholly-owned subsidiary of Tupperware. The Company was
organized to provide financing to Tupperware and other subsidiaries or
affiliates of Tupperware.
The registered office of the Company is at Rijksstraatweg 113-117, NL-3632
AB Loenen a/d Vecht, Netherlands. The Company's telephone number is (407) 826-
5050.
ENFORCEABILITY OF CIVIL LIABILITIES
AND RELATED MATTERS
The Company was organized under the Dutch Civil Code. Certain of its
directors and officers are residents of non-United States jurisdictions and
substantially all of the assets of the Company, and all or a substantial
portion of the assets of such other persons, are located in non-United States
jurisdictions. As a result, it may be difficult for investors to effect
service within the United States upon such persons or to enforce against them,
in the United States, such judgments of courts of the United States predicated
upon civil liabilities under the United States federal securities laws.
Additionally, there is doubt as to the enforceability in The Netherlands, in
original actions or in actions for enforcement of judgements of United States
courts, of liabilities predicated upon the United States federal securities
laws.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement relating to a series
of Securities, the net proceeds received by the Company from the sale of
Securities will be advanced to, or otherwise invested in, other subsidiaries
or affiliates of Tupperware to be used for general corporate purposes, which
may include the repayment of indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES OF TUPPERWARE CORPORATION
The following table sets forth the ratio of earnings to fixed charges of
Tupperware for the periods indicated:
<TABLE>
<CAPTION>
26 WEEKS ENDED YEAR ENDED
---------------- -----------------------------------------------
JUNE 29, JULY 1, DEC. 30, DEC. 31, DEC. 25, DEC. 26, DEC. 28,
1996 1995 1995 1994 1993 1992 1991
-------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Historical.............. 14.2x 14.9x 14.9x 10.9x 5.8x --(1) 3.3x
Pro forma for
Distribution........... 7.8x 7.3x
</TABLE>
3
<PAGE>
(1) For the fiscal year ended December 26, 1992, fixed charges exceeded
earnings by $42.6 million. Pre-tax income was reduced by a $136.7
million charge primarily related to consolidation of manufacturing
capacity and restructuring the U.S. distribution system. Excluding
this charge, the ratio would have been 4.0.
For the purpose of calculating the ratios, earnings consist of income (loss)
before income taxes and cumulative effect of accounting changes to which has
been added fixed charges less capitalized interest. Historical fixed charges
consist of interest expense, interest capitalized, and one third of rental
expense, the approximate portion representing interest. In calculating the
ratios that are pro forma for the Distribution, fixed charges have been
increased for the assumed incremental interest on borrowings incurred in
conjunction with the Distribution (see Note 2(a) to the Tupperware Corporation
Pro Forma Consolidated Statement of Income).
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES, WARRANTS AND GUARANTEES
The following description of the terms of the Debt Securities, Warrants and
Guarantees sets forth certain general terms and provisions of the Debt
Securities, Warrants and Guarantees to which a Prospectus Supplement may
relate. The particular terms and provisions of the Debt Securities offered by
a Prospectus Supplement (the "Offered Debt Securities") or Warrants offered by
a Prospectus Supplement and the extent, if any, to which such general terms
and provisions may not apply to the Debt Securities and Warrants so offered
will be described in the Prospectus Supplement relating to such Offered Debt
Securities and Warrants.
The Debt Securities will be issued under an Indenture (the "Indenture"),
among the Company, Tupperware and The First National Bank of Chicago, as
Trustee (the "Trustee"), a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Debt Securities, the Warrants, the
Guarantees and the Indenture do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the provisions of the
Debt Securities, the Warrant Agreements, the Guarantees and the Indenture,
including the definition therein of certain terms. Wherever particular
sections, articles or defined terms of the Indenture are referred to herein,
such sections, articles or defined terms shall be as specified in the
Indenture. Certain defined terms in the Indenture are capitalized herein.
Section numbers below refer to provisions of the Indenture.
GENERAL
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder and provides that Debt Securities of any series may be
issued thereunder up to the aggregate principal amount which may be authorized
from time to time by the Company. The Indenture does not limit the amount of
other indebtedness or securities which may be issued by the Company.
All Debt Securities will be unsecured and will rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company and will have
the benefit of the Guarantees described below.
Reference is made to the Prospectus Supplement relating to the particular
Offered Debt Securities offered thereby for the following terms of the Offered
Debt Securities: (i) the title of the Offered Debt Securities or the
particular series thereof; (ii) any limit on the aggregate principal amount of
the Offered Debt Securities or the particular series thereof; (iii) whether
the Offered Debt Securities are to be issuable as Registered Securities or
Unregistered Securities or both, whether any of the Offered Debt Securities
are to be issuable initially in temporary global form and whether any of the
Offered Debt Securities are to be issuable in permanent global form; (iv) the
price or prices (generally expressed as a percentage of the aggregate
principal amount thereof) at which the Offered Debt Securities will be issued;
(v) the date or dates on which the Offered Debt Securities will mature; (vi)
the rate or rates per annum (or the formula by which such rate or rates shall
be determined) at which the Offered Debt Securities will bear interest, if
any, and the dates from which any such interest will accrue; (vii) the
interest payment dates on which any such interest on the Offered Debt
Securities will be payable, the regular record date for any interest payable
on any Offered Debt Securities that are Registered Securities on any interest
payment date, and the extent to which, or the manner in which, any interest
payable on a Global Security on an interest payment date will be paid if other
than in the manner described below under "Book-Entry System"; (viii) any
mandatory or optional sinking fund or analogous provisions; (ix) each office
or agency where, subject to the terms of the Indenture as described below
under "Payments and Paying Agents," the principal of and any premium and
interest on the Offered Debt Securities will be payable and each office or
agency where, subject to the terms of the Indenture as described below under
"Denominations, Registration and Transfer," the Offered Debt Securities may be
presented for registration of transfer or exchange; (x) the price or prices at
which and, the period or periods within which the Offered Debt Securities may,
pursuant to any optional or mandatory redemption provisions, be redeemed, in
whole or in part, and the other detailed terms and
5
<PAGE>
provisions of any such optional or mandatory redemption provisions; (xi) the
denominations in which any Offered Debt Securities which are Registered
Securities will be issuable, if other than denominations of U.S. $1,000 and
any integral multiple thereof, and the denomination in which any Offered Debt
Securities which are Unregistered Securities will be issuable, if other than
denominations of U.S. $5,000 and any integral multiple thereof; (xii) the
currency or currencies of payment of principal of and any premium and interest
on the Offered Debt Securities; (xiii) any index used to determine the amount
of payments of principal of and any premium and interest on the Offered Debt
Securities; (xiv) any additional covenants applicable to the Offered Debt
Securities; (xv) whether the Offered Debt Securities will not be defeasible by
the Company or Tupperware pursuant to the provisions described below under
"Defeasance and Discharge, Covenant Defeasance"; and (xvi) any other terms and
provisions of the Offered Debt Securities or the Guarantees not inconsistent
with the terms and provisions of the Indenture. Any such Prospectus Supplement
will also describe any special provisions for the payment of additional
amounts with respect to the Offered Debt Securities. (Section 2.3).
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or foreign currency unit or units or if the
principal of and any premium and interest on any series of Offered Debt
Securities is payable in a foreign currency or currencies or foreign currency
unit or units, the restrictions, elections, general tax considerations,
specific terms and other information with respect to such issue of Offered
Debt Securities and such foreign currency or currencies or foreign currency
unit or units will be set forth in the applicable Prospectus Supplement.
Some of the Debt Securities may be issued as original issue discount
securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below
their stated principal amount. Federal income tax considerations and other
special considerations applicable to any original issue discount securities
will be set forth in the applicable Prospectus Supplement.
There are no covenants or provisions contained in the Indenture which may
afford debt holders protection in the event of a highly leveraged transaction.
WARRANTS
The Company may issue Warrants for the purchase of Debt Securities. Warrants
may be issued independently or together with Debt Securities offered by any
Prospectus Supplement and may be attached to or separate from such Debt
Securities. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between the Company and a
warrant agent to be designated by the Company (the "Warrant Agent"), all as
set forth in the Prospectus Supplement relating to the particular issue of
offered Warrants. The Warrant Agent will act solely as an agent of the Company
in connection with the Warrants and will not assume any obligation or
relationship of agency or trust for or with any holders of Warrants or
beneficial owners of Warrants. Holders of Warrants (without the consent of the
Warrant Agent, any Trustee, the holders of any Debt Securities or the holders
of any other Warrants) may, on their own behalf and for their own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce or otherwise in respect of, their rights to
exercise Warrants evidenced by Warrant Certificates. Copies of the forms of
Warrant Agreements, including the forms of Warrant Certificates representing
the Warrants, are filed as exhibits to the Registration Statement of which
this Prospectus is a part. The following summary of certain provisions of the
Warrants does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all the provisions of the Warrant Agreements.
Reference is made to the Prospectus Supplement relating to any particular
issue of Warrants for the terms of such Warrants, including, where applicable:
(i) the initial public offering price of such Warrants; (ii) the title and
terms of any Debt Securities with which such Warrants are issued, the number
of such Warrants issued with each Debt Security offered and the date, if any,
on or after such Warrants and the related Debt Securities will be separately
transferable; (iii) the designation, aggregate principal amount, currencies,
denominations and terms of the series of Debt Securities purchasable upon
exercise of Warrants to purchase Debt Securities and the price at which such
Debt Securities may be purchased upon such exercise; (iv) the date on which
the right to exercise such Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire; (v) U.S.
6
<PAGE>
federal income tax consequences applicable to such Warrants; and (vi) any
other terms of such Warrants. The exercise price for Warrants may be subject
to adjustment in accordance with the applicable Prospectus Supplement.
Unless otherwise provided in the related Prospectus Supplement, each Warrant
will entitle the holder thereof to purchase such principal amount of Debt
Securities at such exercise price as shall in each case be set forth in, or
calculable from, the Prospectus Supplement relating to the offered Warrants,
which exercise price may be subject to adjustment upon the occurrence of
certain events as set forth in such Prospectus Supplement. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Company), unexercised Warrants will become void.
The place or places where, and the manner in which, Warrants may be exercised
will be specified in the Prospectus Supplement relating to such Warrants.
Prior to the exercise of any Warrants to purchase Debt Securities, holders
of such Warrants will not have any of the rights of holders of the Debt
Securities purchasable upon such exercise, including the right to receive
payments of principal of, premium, if any, or interest on the Debt Securities
purchasable upon such exercise or to enforce covenants in the applicable
Indenture.
Unless otherwise provided in the related Prospectus Supplement, each Warrant
Agreement may be amended by the Company and the Warrant Agent (i) without the
consent of the holders of Warrants for the purpose of curing any ambiguity,
curing, correcting or supplementing any defective provision contained therein
or making such provisions with respect to matters or questions arising
thereunder as the Company and the Warrant Agent may deem necessary or
desirable, provided that such action will not have a material adverse effect
on the interests of the holders of Warrants and (ii) with the consent of the
holders of not less than a majority of the Warrants then outstanding and
unexercised for any other reason.
GUARANTEES
Tupperware will unconditionally guarantee the due and punctual payment of
the principal, premium, if any, and interest (including additional amounts) on
the Debt Securities when and as the same shall become due and payable, whether
at maturity, upon redemption, or otherwise. (Section 2.13). Tupperware may,
without the consent of the holders of the Debt Securities, assume all rights
and obligations of the Company with respect to a series of the Debt
Securities, as described in the Indenture, and upon such assumption, the
Company will be released from its liabilities under the Indenture and under
such series of Debt Securities. (Section 2.15). The Guarantees will rank
equally with all other unsecured and unsubordinated obligations of Tupperware.
DENOMINATIONS, REGISTRATION AND TRANSFER
The Debt Securities will be issuable as Registered Securities, Unregistered
Securities or both. Debt Securities may be issuable in the form of one or more
Global Securities, as described below under "Book-Entry System." Unless
otherwise provided in the applicable Prospectus Supplement, Registered
Securities denominated in U.S. dollars will be issued only in denominations of
$1,000 or any integral multiple thereof and Unregistered Securities
denominated in U.S. dollars will be issued only in denominations of $5,000 or
any integral multiple thereof with coupons attached. A Global Security will be
issued in a denomination equal to the principal amount of outstanding Debt
Securities represented by such Global Security. The Prospectus Supplement
relating to Offered Debt Securities denominated in a foreign or composite
currency will specify the denominations thereof. (Sections 2.3 and 2.7). The
Debt Securities of each series will be consecutively numbered, beginning with
the number one.
In connection with the original issuance, no Unregistered Security shall be
mailed or otherwise delivered to any location in the United States (as defined
below under "Limitations on Issuance of Unregistered Securities") and an
Unregistered Security may be delivered in connection with its original
issuance only if the person entitled to receive such Unregistered Security
furnishes written certification, in the form required by the Indenture, to the
7
<PAGE>
effect that such Unregistered Security is not being acquired by or on behalf
of a United States person (as defined below under "Limitations on Issuance of
Unregistered Securities"), or, if a beneficial interest in such Unregistered
Security is being acquired by or on behalf of a United States person, that
such United States person is a financial institution which agrees to comply
with the requirements of Section 165(j) (3) (A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended ( the "Code"), and the
regulations thereunder. (Sections 2.4 and 2.11). See "Limitations on Issuance
of Unregistered Securities" below.
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations, subject to the
limitations regarding Global Securities discussed in "Book-Entry System"
below. In addition, if Debt Securities of any series are issuable as both
Registered Securities and as Unregistered Securities, at the option of the
holder upon request confirmed in writing, and subject to the terms of the
Indenture, Unregistered Securities (with all unmatured coupons, except as
provided below, and all matured coupons in default attached) of such series
will be exchangeable for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor.
Unless otherwise indicated in an applicable Prospectus Supplement, any
Unregistered Security surrendered in exchange for a Registered Security
between a record date and the relevant date for payment of interest shall be
surrendered without the coupon relating to such date for payment of interest
attached and interest will not be payable in respect of the Registered
Security issued in exchange for such Unregistered Security, but will be
payable only to the holder of such coupon when due in accordance with the
terms of the Indenture. Except as provided in an applicable Prospectus
Supplement, Unregistered Securities will not be issued in exchange for
Registered Securities. (Section 2.8).
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than a Global Security) may be presented for
registration of transfer (with the form of transfer duly executed), at the
office of the security registrar designated by the Company or at the office of
any transfer agent designated by the Company for such purpose with respect to
any series of Debt Securities and referred to in an applicable Prospectus
Supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the Indenture. Such transfer or exchange
will be effected upon the security registrar or such transfer agent, as the
case may be, being satisfied with the documents of title and identity of the
person making the request. The Company has initially appointed the Trustee as
the security registrar under the Indenture. (Section 2.8). If a Prospectus
Supplement refers to any transfer agent (in addition to the security
registrar) initially designated by the Company with respect to any series of
Debt Securities, the Company may at any time rescind the designation of any
such transfer agent or approve a change in location through which any such
transfer agent acts, except that, if Debt Securities of a series are issuable
only as Registered Securities, the Company will be required to maintain a
transfer agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Unregistered Securities, the Company
will be required to maintain (in addition to the Security Registrar) a
transfer agent in a Place of Payment for such series located outside the
United States. The Company may at any time designate additional transfer
agents with respect to any series of Debt Securities. (Section 3.2).
In the event of any redemption in part, the Company shall not be required to
(i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Debt Securities of that series selected
to be redeemed and ending at the close business on (a) if Debt Securities of
the series are issuable only as Registered Securities, the day of mailing of
the relevant notice of redemption and (b) if Debt Securities of the series are
issuable as Unregistered Securities, the day of the first publication of the
relevant notice of redemption or, if Debt Securities of that series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption; (ii) register the transfer of or exchange
any Registered Security or portion thereof called for redemption, except the
unredeemed portion of any Registered Security being redeemed in part; or (iii)
exchange any Unregistered Security called for redemption, except to exchange
such Unregistered Security for a Registered Security of that series and like
tenor which is immediately surrendered for redemption. (Section 2.8).
8
<PAGE>
PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Securities (other
than a Global Security) will be made at the office of such Paying Agent or
Paying Agents as the Company may designate from time to time, except that, at
the option of the Company, payment of any interest may be made by check mailed
to the address of the payee entitled thereto as such address shall appear in
the Security Register. (Sections 2.7 and 3.2). Unless otherwise indicated in
an applicable Prospectus Supplement, payment of any installment of interest on
Registered Securities will be made to the person in whose name such Registered
Security is registered at the close of business on the record date for such
interest payment. (Section 2.7).
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Unregistered Securities will
be payable (subject to applicable laws and regulations) at the offices of such
Paying Agent or Paying Agents outside the United States as the Company may
designate from time to time, except that, at the option of the Company,
payment of any interest may be made by check or by wire transfer to an account
maintained by the payee outside the United States. (Sections 2.7 and 3.2).
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
interest on Unregistered Securities on any Interest Payment Date will be made
only against surrender of the coupon relating to such Interest Payment Date.
(Section 2.7). No payment with respect to any Unregistered Security will be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained in the United States. Payments will not be made in respect of
Unregistered Securities or coupons appertaining thereto pursuant to
presentation to the Company or its Paying Agents within the United States or
any other demand for payment to the Company or its Paying Agents within the
United States. Notwithstanding the foregoing, payment of principal of and any
premium and interest on Unregistered Securities denominated and payable in
U.S. dollars will be made at the office of the Company's Paying Agent in the
United States if, and only if, payment of the full amount thereof in U.S.
dollars at all offices or agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions and
the Company has delivered to the Trustee an opinion of counsel to that effect.
(Section 3.2).
Unless otherwise indicated in an applicable Prospectus Supplement, the
principal office of the Trustee in The City of New York will be designated as
the Company's sole Paying Agent for payments with respect to Debt Securities
which are issuable solely as Registered Securities. Any Paying Agent outside
the United States and any other Paying Agent in the United States initially
designated by the Company for the Debt Securities will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except
that, if Debt Securities of a series are issuable only as Registered
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Unregistered Securities, the Company will be required to maintain
(i) a Paying Agent in each Place of Payment for such series in the United
States for payments with respect to any Registered Securities of such series
(and for payments with respect to Unregistered Securities of such series in
the circumstances described above, but not otherwise), (ii) a Paying Agent in
each Place of Payment located outside the United States where Debt Securities
of such series and any coupon appertaining thereto may be presented and
surrendered for payment; provided that if the Debt Securities of such series
are listed on The International Stock Exchange, London or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
in London or Luxembourg City or any other required city located outside the
United States, as the case may be, for Debt Securities of such series and
(iii) a Paying Agent in each Place of Payment located outside the United
States where (subject to applicable laws and regulations) Registered
Securities of such series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company may be served.
(Section 3.2).
All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium and interest on any Debt Security that remains
unclaimed at the end of two years after such principal, premium or
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interest shall have become due and payable will be repaid to the Company and
thereafter the holder of such Debt Security or any coupon appertaining thereto
will look only to the Company for payment thereof. (Section 10.7).
BOOK-ENTRY SYSTEM
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities of any series shall be issued under a book-entry system in the form
of one or more registered global securities (each a "Global Security"). Unless
otherwise specified in an applicable Prospectus Supplement, each Global
Security will be deposited with, or on behalf of, a depositary, which, unless
otherwise specified in an applicable Prospectus Supplement or Prospectus
Supplements, will be The Depository Trust Company, New York, New York (the
"Depositary"). Unless otherwise specified in an applicable Prospectus
Supplement, Global Securities will be registered in the name of the Depositary
or its nominee and will bear a legend regarding the restrictions on exchanges
and registration of transfers thereof referred to below and any other matters
as may be provided for pursuant to the Indenture.
The Depositary has advised the Company that the Depositary is a limited-
purpose trust company organized under the New York Banking Law, a "banking
organization" within the means of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered pursuant to
the provisions of Section 17A of the Exchange Act. The Depositary was created
to hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations, some of whom
(and/or their representatives) own the Depositary. Access to the Depositary's
book-entry system is also available to others, such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship
with a participant, either directly or indirectly.
Upon the issuance of a Global Security in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of participants. The accounts to be credited will be
designated by the underwriters, dealers or agents, if any, or by the Company,
if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in the Global Security will be limited to
participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in the Global Security will
be shown on, and the transfer of that ownership interest will be effected only
through, records maintained by such participants. The laws of some
jurisdictions may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may impair the
ability to transfer beneficial interest in a Global Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, it will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in an applicable Prospectus Supplement,
except as set forth below, owners of beneficial interests in such Global
Security will not be entitled to have the Debt Securities represented thereby
registered in their names, will not receive or be entitled to receive physical
delivery of certificates representing the Debt Securities and will not be
considered the owners or holders thereof under the Indenture. Accordingly,
each person owning a beneficial interest in such Global Security must rely on
the procedures of the Depositary and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the Indenture. The Company
understands that under existing practice, in the event that the Company
requests the holders to take, or a beneficial owner desires to take, any
action, the Depositary would act upon the instructions of, or authorize, the
participant to take such action.
Payment of principal of, and any premium and interest on, Debt Securities
represented by a Global Security will be made to the Depositary or its
nominee, as the case may be, as the registered owner and holder of the Global
Security representing such Debt Securities. None of the Company, the Trustee,
any paying agent or
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registrar for such Debt Securities will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in the Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal and any premium or
interest on the payment date thereof in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Security
as shown on the records of the Depositary. The Company expects that payments
by participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in "street name," and will be the responsibility of
such participants.
Unless otherwise specified in an applicable Prospectus Supplement, a Global
Security may not be exchanged or transferred except as a whole by the
Depositary to a nominee or successor of the Depositary or by a nominee of the
Depositary to another nominee of the Depositary. A Global Security
representing all but not part of the Debt Securities being offered hereby is
exchangeable or transferable for Debt Securities in definitive form of like
tenor and terms if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary for such Global Security or if
at any time the Depositary is no longer eligible to be or in good standing as
a clearing agency registered under the Exchange Act, and in either case, a
successor depositary is not appointed by the Company within 90 days of receipt
by the Company of such notice or of the Company becoming aware of such
ineligibility or (ii) the Company in its sole discretion at any time
determines not to have all of the Debt Securities represented by a Global
Security and notifies the Trustee thereof. A Global Security exchangeable
pursuant to the preceding sentence shall be exchangeable for Debt Securities
registered in such names and in such authorized denominations as the
Depositary for such Global Security shall direct (Section 2.8).
LIMITATIONS ON ISSUANCE OF UNREGISTERED SECURITIES
In compliance with United States federal tax laws and regulations,
Securities may not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to United States persons (each
as defined below) other than to a Qualifying Branch of a United States
Financial Institution (as defined below), and any underwriters, agents and
dealers participating in the offering of Debt Securities must agree that they
will not offer any Unregistered Securities for sale or resale in the United
States or to United States persons (other than a Qualifying Branch of a United
States Financial Institution) nor deliver Unregistered Securities within the
United States. In addition, any such underwriters, agents and dealers must
agree to send confirmations to each purchaser of an Unregistered Security
confirming that such purchaser represents that it is not a United States
person or is a Qualifying Branch of a United States Financial Institution and,
if such person is a dealer, that it will send similar confirmations to
purchasers from it. The term "Qualifying Foreign Branch of a United States
Financial Institution" means a branch located outside the United States of a
United States securities clearing organization, bank or other financial
institution that holds customers' securities in the ordinary course of its
trade or business and that agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code and the regulations thereunder.
Unregistered Securities and any coupons appertaining thereto will bear a
legend substantially to the following effect: "Any United States person who
holds this obligation will be subject to limitations under the United States
income tax laws, including the limitations provided in Sections 165(j) and
1287(a) of the Internal Revenue Code". Under Sections 165(j) and 1287(a) of
the Code, holders that are United States persons, with certain exceptions,
will not be entitled to deduct any loss on Unregistered Securities and must
treat as ordinary income any gain realized on the sale or other disposition
(including the receipt of principal) of Unregistered Securities.
The term "United States person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or of any political subdivision thereof,
and an estate or trust the income of which is subject to United States federal
income taxation regardless
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of its source, and the term "United States" means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico).
PAYMENT OF ADDITIONAL AMOUNTS
Unless otherwise provided in the Prospectus Supplement relating to a
particular series of Offered Debt Securities, if any deduction or withholding
for any present or future taxes, assessments or other governmental charges of
The Netherlands or any political subdivision or taxing authority thereof or
therein shall at any time be required in respect of any amounts to be paid by
the Company under the Debt Securities of such series, the Company will pay as
additional interest such additional amounts as may be necessary in order that
the net amounts paid to the holder of any such Debt Security pursuant to the
terms of such Debt Security, after such deduction or withholding, will be not
less than the amounts specified in such Debt Security to be then due and
payable; provided, however, that the Company shall not be required to make any
payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge which would not have
been imposed but for (i) the existence of any present or former connection
between such holder (or between a fiduciary, settlor, beneficiary, member
or shareholder of, or possessor of a power over, such holder, if such
holder is an estate, trust, partnership or corporation) and The Netherlands
or any political subdivision or territory or possession of The Netherlands
or area subject to its jurisdiction, including, without limitation, such
holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen or resident or treated as a
resident thereof, being or having been present or engaged in trade or
business therein or having or having had a permanent establishment therein
or (ii) the presentation of such Debt Security (where presentation is
required) for payment on a date more than 20 days after the date on which
such payment became due and payable or the date on which payment thereof
was duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments of (or in respect of) principal
of or interest on such Debt Security;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure to comply by the holder or the beneficial
owner with a request of the Company addressed to the holder to provide
information concerning the nationality, residence or identity of the holder
or beneficial owner of such Debt Security, and to make such declaration or
other similar claim or reporting requirement, which is required by a
statute, treaty or regulation of The Netherlands as a precondition to
exemption from all or part of such tax, assessment or other governmental
charge; or
(e) any condition of items (a), (b), (c) and (d) above;
nor will additional amounts be paid with respect to any payment of the
principal of or interest on any such Debt Security to any such holder who is a
fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws of The
Netherlands (or any political subdivision or taxing authority of or in The
Netherlands) to be included in the income for tax purpose of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to such additional amounts
had it been the holder of such Debt Security. (Section 13.2).
The Guarantees include Tupperware's unconditional guarantee of the due and
punctual payment of any additional amounts described herein (Section 2.13).
In the opinion of Baker & McKenzie, under Dutch law as applied and
interpreted on the date of this Prospectus, no taxes, levies, imposts or
charges of The Netherlands or any political subdivision or taxing
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authority thereof or therein would be required to be deducted or withheld from
any payment by the Company under the Debt Securities.
OPTIONAL TAX REDEMPTION
If the provisions described under "Payment of Additional Amounts" apply to a
series of Debt Securities, the Debt Securities of such series may be redeemed,
at the option of the Company or Tupperware, in whole but not in part, upon not
less than 30 nor more than 60 days' notice given as provided in the Indenture,
at any time (except Debt Securities that have a variable rate of interest
which may be redeemed only on an interest payment date) at a redemption price
equal to the principal amount thereof (except for Debt Securities issued at a
price representing a discount from the principal amount payable at maturity
which may be redeemed at the redemption price set forth in such Debt
Securities) plus accrued interest to the date fixed for redemption if, as a
result of any change in or amendment to the laws (or any regulations or
rulings promulgated thereunder) of The Netherlands or any political
subdivision or taxing authority thereof or therein, or any change in the
official application or interpretation of such laws, regulations or rulings,
or any change in the official application or interpretation of, or any
execution of or amendment to, any treaty or treaties affecting taxation to
which The Netherlands is a party, which change, execution or amendment becomes
effective on or after the original issue date of such Debt Securities, the
Company or Tupperware has been or will be required to pay additional amounts
with respect to such Debt Securities. (Section 13.3).
The Company will also pay, or make available for payment, to holders on the
redemption date any additional amounts (as described under "Payment of
Additional Amounts" above) resulting from the payment of such redemption
price.
CERTAIN DEFINITIONS
"Consolidated Net Tangible Assets" means the total assets of Tupperware and
its consolidated subsidiaries as shown on or reflected in its balance sheet
less (a) all current liabilities (excluding Funded Debt), (b) advances to
entities accounted for on the equity method of accounting and (c) intangible
assets. "Intangible assets" means the aggregate value (net of any applicable
reserves), as shown on or reflected in such balance sheet, of: (i) all trade
names, trademarks, licenses, patents, copyrights and goodwill; (ii)
organizational and development costs; (iii) deferred charges (other than
prepaid items such as insurance, taxes, interest, commissions, rents and
similar items and tangible assets being amortized); and (iv) unamortized debt
discount and expense, less unamortized premium. (Section 1.1).
"Exempted Indebtedness" means the sum of (i) the aggregate outstanding
indebtedness of Tupperware and its Restricted Subsidiaries incurred after the
date of the Indenture and secured by liens relating to Principal Property
(other than liens excluded from Exempted Indebtedness as described under
"Certain Covenants--Restrictions on Secured Debt") and (ii) the aggregate
discounted value of the obligations of Tupperware or any Restricted Subsidiary
for rental payments in respect to sale and leaseback transactions relating to
Principal Property (other than sale and leaseback transactions excluded from
Exempted Indebtedness as described under "Certain Covenants--Limitation on
Sales and Leaseback Transactions"). (Section 1.1).
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being
renewable or extendible beyond 12 months from such date at the option of the
borrower and (ii) rental obligations payable more than 12 months from such
date under leases which are capitalized in accordance with generally accepted
accounting principles (such rental obligations to be included as Funded Debt
at the amount so capitalized at the date of such computation and to be
included for the purposes of the definition of Consolidated Net Tangible
Assets both as an asset and as Funded Debt at the respective amounts so
capitalized). (Section 1.1).
"Principal Property" means any manufacturing facility having a gross book
value (without deduction of any depreciation reserves) in excess of 1% of
Consolidated Net Tangible Assets at the time of determination
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thereof and owned by Tupperware or any Restricted Subsidiary and located
within United States of America other than any such facility or portion
thereof which the Board of Directors of Tupperware reasonably determines is
not material to the business conducted by Tupperware and its Subsidiaries as a
whole. (Section 1.1).
"Restricted Subsidiary" means any Subsidiary (i) substantially all of the
property of which is located, and substantially all of the business of which
is carried on, within the United States of America and (ii) which owns or
operates one or more Principal Properties; provided, however, Restricted
Subsidiary does not include a Subsidiary which is primarily engaged in
business as a finance or insurance company and branches thereof or a
Subsidiary which acts exclusively as a holding company for a Subsidiary which
is primarily engaged in business as a finance or insurance company. (Section
1.1).
"Subsidiary" means each corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Tupperware or one or more
Subsidiaries, or by the Company and one or more other Subsidiaries. (Section
1.1).
CERTAIN COVENANTS
Restrictions on Secured Debt. Tupperware will not itself, and will not
permit any Restricted Subsidiary to, incur, issue, assume or guarantee any
evidence of indebtedness for money borrowed ("Debt") secured after the date of
Indenture by a mortgage, pledge or lien ("Mortgage") on any Principal Property
of Tupperware or any Restricted Subsidiary, or on any shares of stock of or
Debt of any Restricted Subsidiary, without effectively providing that the Debt
Securities are secured equally and ratably with (or, at Tupperware's option,
prior to) such secured Debt, unless, after giving effect thereto, Exempted
Indebtedness would not exceed 10% of Consolidated Net Tangible Assets.
The above restriction does not apply to, and there will be excluded from
Exempted Indebtedness in any computation under such restriction, (i) Debt
secured by Mortgages on property of, or on any shares of stock of or Debt of,
any corporation existing at the time such corporation becomes a Restricted
Subsidiary, (ii) Debt secured by Mortgages in favor of Tupperware or a
Restricted Subsidiary, (iii) Debt secured by Mortgages in favor of
governmental bodies to secure progress or advance payments or payments
pursuant to contracts or statute, (iv) Debt secured by Mortgages on property,
shares of stock or Debt existing at the time of acquisition thereof (including
acquisition through merger or consolidation) and Debt secured by Mortgages to
finance the acquisition of property, shares of stock or Debt or to finance
construction on property which is incurred within 180 days of such acquisition
or completion of construction, (v) Debt secured by Mortgages securing
industrial revenue or pollution control bonds, or (vi) any extension, renewal
or replacement of any Mortgage referred to in the foregoing clauses (i)
through (v) inclusive; provided, however, that such extension, renewal or
replacement Mortgage shall be limited to all or part of the same property,
shares of stock or Debt that secured the Mortgage extended, renewed or
replaced (plus improvements on such property) and such extension, renewal or
replacement shall not be for an amount which is greater than the Mortgage
extended, renewed or replaced. (Section 3.5).
Limitation on Sales and Leaseback Transactions. Neither Tupperware nor any
Restricted Subsidiary may enter into any sale and leaseback transaction
involving any Principal Property, unless, after giving effect thereto,
Exempted Indebtedness would not exceed 10% of Consolidated Net Tangible
Assets.
This restriction does not apply to, and there shall be excluded from
Exempted Indebtedness in any computation under such restriction, any sale and
leaseback transaction if (i) the lease is for a period of not in excess of
three years, including renewal rights, (ii) the sale or transfer of the
Principal Property is made within 180 days after the later of its acquisition
or completion of construction, (iii) the lease secures or relates to
industrial revenue or pollution control bonds, (iv) the transaction is between
Tupperware and a Restricted Subsidiary or between Restricted Subsidiaries, or
(v) Tupperware or such Restricted Subsidiary, within 180 days after the sale
or transfer is completed, applies (A) to the retirement of the Debt
Securities, other Funded Debt of the Company or Tupperware ranking on a parity
with or senior to the Debt Securities, or Funded Debt of a Restricted
Subsidiary, or (B) to the purchase of other property which will constitute a
Principal Property having
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a fair market value, in the good faith opinion of the Board of Directors of
Tupperware, at least equal to the fair market value of the Principal Property
leased, an amount equal to the greater of (i) the net proceeds of the sale of
the Principal Property leased, or (ii) the fair market value (in the good
faith opinion of the Board of Directors of Tupperware) of the Principal
Property leased. In lieu of applying proceeds to the retirement of Funded
Debt, Tupperware may surrender debentures or notes (including the Debt
Securities) to the trustee for retirement and cancellation, or the Company or
a Restricted Subsidiary may receive credit for the principal amount of Funded
Debt voluntarily retired within 180 days after such sale. (Section 3.6).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Tupperware covenants that it will not merge or consolidate or sell or convey
all or substantially all of its assets unless the successor corporation is
Tupperware or is a corporation organized under the laws of the United States
or any State thereof which assumes Tupperware's obligations on the Guarantees
and under the Indenture, and after giving effect to such transaction,
Tupperware or the successor corporation would not be in default under the
Indenture. (Section 9.1).
EVENTS OF DEFAULT
An Event of Default with respect of any series of Debt Securities is defined
in the Indenture as being (a) default by the Company for 30 days in the
payment of any installment of interest on the Debt Securities of such series;
(b) default by the Company in the payment of any principal on the Debt
Securities of such series; (c) default by the Company in the payment of any
sinking fund installment with respect to Debt Securities of such series; (d)
default by the Company or Tupperware in the performance of any of the
covenants or warranties in the Indenture contained therein in respect of the
Debt Securities of such series which shall not have been remedied within a
period of 90 days after receipt of written notice by the Company and
Tupperware from the Trustee or by the Company and the Trustee from the holders
of not less than 25% in principal amount of the outstanding Debt Securities of
such series; (e) certain events of bankruptcy, insolvency or reorganization of
the Company or Tupperware; affected thereby or (f) any other Event of Default
established in accordance with the Indenture with respect to such series of
Debt Securities. (Section 5.1).
If an Event of Default with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25% in principal amount of the outstanding Debt Securities of the
series may declare the principal of the Debt Securities of such series (or if
the Debt Securities of that series are Original Issue Discount Securities,
such portion of the principal as may be specified by the terms of that series)
to be due and payable immediately. Upon certain conditions specified in the
Indenture, such declaration (including a declaration caused by a default in
the payment of principal or interest, the payment for which has subsequently
been provided) may be annulled by the holders of a majority in principal
amount of the Debt Securities of such series then outstanding (each such
series treated as a separate class). In addition, past defaults may be waived
by the holders of a majority in principal amount of the Debt Securities of the
series then outstanding affected thereby (each such series treated as a
separate class), except a default in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the
holder of each Debt Security so affected. (Sections 5.1 and 5.10).
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care,
to be indemnified by the holders of Debt Securities before proceeding to
exercise any right or power under the Indenture at the request of the holders
of such Debt Securities. (Section 6.2). The Indenture also provides that the
holders of a majority in principal amount of the outstanding Debt Securities
of each series affected (each series treated as a separate class) may 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 Debt Securities of such series. (Section 5.9).
The Indenture contains a covenant that the Company and Tupperware will each
file annually with the Trustee a certificate as to the absence of any default
or specifying any default that exists. (Section 4.3).
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DEFEASANCE AND DISCHARGE, COVENANT DEFEASANCE
The Company and Tupperware may elect, at their option at any time, to effect
a defeasance and discharge (a "Defeasance") or a covenant defeasance (a
"Covenant Defeasance") in respect of the Debt Securities and, unless otherwise
specified in a Prospectus Supplement relating to particular Offered Debt
Securities, any series of Debt Securities.
Upon the Company's or Tupperware's exercise of its respective option to
effect a Defeasance in respect of the Debt Securities or any series thereof,
the Company and Tupperware will be deemed to have been discharged from their
respective obligations with respect to such Debt Securities on and after the
date the conditions to Defeasance described below are satisfied. For purposes
of the Indenture, Defeasance means the Company will be deemed to have paid and
discharged the entire indebtedness represented by such Debt Securities and
that the Company and Tupperware will be deemed to have satisfied all of their
other respective obligations under or with respect to such Debt Securities and
under the Indenture, except for the following: (i) the rights of Holders of
such Debt Securities to receive, solely from the trust fund described in the
Indenture, payments in respect of principal of, and any premium and interest
on, such Debt Securities when due; (ii) certain obligations of the Company and
Tupperware under the Indenture with respect to temporary securities;
registration, registration of transfer and exchange; mutilated, destroyed,
lost or stolen securities; maintenance of an office or agency; and money held
in trust for the benefit of Holders of such Debt Securities; (iii) the rights,
powers, trusts, duties and immunities of the Trustee; and (iv) the foregoing
provisions. (Section 10.2).
Upon the exercise by the Company or Tupperware of its option to effect a
Covenant Defeasance with respect to any Debt Securities or any series thereof,
(i) the Company and Tupperware will be released from their respective
obligations with respect to restrictions on secured debt, limitations on sales
and leaseback transactions and maintenance of properties, as well as any
additional covenants specified in the terms of such series of Debt Securities
or any supplemental indenture related thereto, and (ii) the occurrence of
certain events of default related to the foregoing covenants will be deemed
not to be or result in an Event of Default, in each case with respect to such
Debt Securities after the date that the conditions to Covenant Defeasance
described below are satisfied. (Section 10.3).
The conditions that the Company and Tupperware must satisfy in order to
effect a Defeasance or a Covenant Defeasance in respect of the Debt Securities
or any series thereof are as follows: (i) the Company or Tupperware will
irrevocably deposit or cause to be deposited with the trustee as trust funds,
for the purpose of making payments when due under the Indenture, money or U.S.
Government Obligations or a combination thereof, in an amount sufficient to
pay and discharge the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
such Debt Securities and the Indenture; (ii) delivery by the Company or
Tupperware of an Opinion of Counsel regarding the tax effects of such action
on the Holders of Debt Securities; (iii) delivery by the Company of an
Officer's Certificate to the effect that no listed Debt Securities, if then
listed or any securities exchange, will be delisted; (iv) no Event of Default
shall have occurred and be continuing at the time of the deposit or, regarding
bankruptcy-related events, at any time on or prior to the 90th day after such
deposit; (v) such Defeasance or Covenant Defeasance will not cause the trustee
to have a conflicting interest under the Trust Indenture Act; (vi) such
Defeasance or Covenant Defeasance will not result in a breach of or default
under any other agreement to which the Company or Tupperware is a party or by
which it is bound; (vii) such Defeasance or Covenant Defeasance will not
result in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act unless the trust is
registered or exempted thereunder; and (viii) delivery by the Company and
Tupperware to the Trustee of any Officer's Certificate and Opinion of Counsel,
each stating that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with. (Section 10.4).
MODIFICATION OF THE INDENTURE AND WAIVER
The Indenture contains provisions permitting the Company, Tupperware and the
Trustee, with the consent of the holders of more than 50% of the principal
amount of the Debt Securities of all series then outstanding
16
<PAGE>
affected by such supplemental indenture (treated as one class), to execute
supplemental indentures adding any provisions to or changing or eliminating
any of the provisions of the Indenture or modifying the rights of the holders
of Debt Securities of each such series, except that no such supplemental
indenture may, among other things, (i) extend the final maturity of any Debt
Securities, or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof, or reduce any amount payable
upon any redemption thereof without the consent of the holder of each Debt
Security so affected, (ii) reduce the aforesaid percentage of Debt Securities,
the consent of the holders of which is required for any such supplemental
indenture, or (iii) change the substantive provisions of the Guarantees
without the consent of the holders of all outstanding Debt Securities.
(Section 8.2).
RESIGNATION AND REMOVAL OF TRUSTEE
The trustee with respect to a series of Debt Securities may at any time
resign by giving notice thereof to the Company, Tupperware and to the Holders
of such Debt Securities. Upon receipt of such notice, the Company and
Tupperware will promptly appoint a successor trustee meeting the
qualifications specified in the Indenture. If no successor trustee shall have
been so appointed within thirty days after mailing of such notice of
resignation, the resigning trustee or any person who shall have been the
Holder of any of such Debt Securities for at least six months may petition a
court of competent jurisdiction for the appointment of a successor trustee.
(Section 6.10).
If at any time the trustee with respect to a series of Debt Securities shall
(i) fail to eliminate a conflicting interest or resign after a written request
to do so by the Company, Tupperware or any person who shall have been the
holder of any of such Debt Securities for at least six months; (ii) cease to
be eligible to act as trustee and fail to resign after a written request to do
so by the Company, Tupperware or any holder of Debt Securities; or (iii)
become incapable of acting as trustee with respect to such Debt Securities or
be adjudged bankrupt or insolvent, then in any such case, the Company or
Tupperware may remove such trustee and appoint a successor trustee, or any
person who shall have been the holder of any of such Debt Securities for at
least six months may petition a court of competent jurisdiction for the
removal of such trustee and the appointment of a successor trustee. (Section
6.10).
The holders of a majority in aggregate principal amount of the Debt
Securities of any series may at any time remove the trustee with respect to
such Debt Securities and appoint a successor trustee with respect to such Debt
Securities. (Section 6.10).
GOVERNING LAW
The Indenture, the Debt Securities and the Guarantees are governed by and
construed in accordance with the laws of the State of New York. Under New York
law, claims for payment of principal, premium, if any, and interest will be
barred by the statute of limitations six years after such amounts become due
and payable. (Section 11.8).
PLAN OF DISTRIBUTION
The Company and Tupperware may sell the Securities in four ways: (i)
directly to purchasers, (ii) through agents, (iii) to or through underwriters
and (iv) to dealers.
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, or 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 or agents may
receive compensation from the Company, from Tupperware or from purchasers of
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell the Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters
17
<PAGE>
and/or commissions from the purchasers from whom they may act as agents. Any
underwriters or agents participating in the distribution of Securities may be
deemed to be underwriters, and any discounts or commissions received by them
from the Company or Tupperware and any profit on the resale of Securities may
be deemed to be underwriting discounts and commissions under the Securities
Act of 1933, as amended (the "Securities Act").
Offers to purchase Securities may be solicited directly by the Company or
Tupperware and sales thereof may be made by the Company or Tupperware directly
to institutional investors or others. The terms of any such sales will be set
forth in the accompanying Prospectus Supplement.
Offers to purchase Securities may be solicited by agents designated by the
Company or Tupperware from time to time. Any such agent, who may be deemed to
be an underwriter as that term is defined in the Securities Act, involved in
the offer or sale of the Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company or
Tupperware to such agent will be set forth, in the accompanying Prospectus
Supplement. Unless otherwise indicated in the accompanying Prospectus
Supplement, any such agent will be acting on a reasonable efforts basis for
the period of its appointment. Agents may be entitled under agreements which
may be entered into with the Company and/or Tupperware to indemnification by
the Company and/or Tupperware against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company or Tupperware in the
ordinary course of business.
If any underwriters are utilized in the sale of the Securities in respect of
which this Prospectus is delivered, the Company and/or Tupperware will enter
into an underwriting agreement with such underwriters at the time of sale to
them and the names of the specific managing underwriter or underwriters, as
well as any other underwriters and the terms of the transaction will be set
forth in the accompanying Prospectus Supplement, which will be used by the
underwriters to make resales of the Securities in respect of which this
Prospectus is delivered to the public. The underwriters may be entitled, under
the relevant underwriting agreement, to indemnification by the Company and/or
Tupperware against certain liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with, or
perform services for, the Company and/or Tupperware in the ordinary course of
business.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company or Tupperware will sell such
Securities to the dealer, as principal. The dealer may then resell such
Securities to the public at varying prices to be determined by such dealer at
the time of resale. Dealers may be entitled to indemnification by the Company
and/or Tupperware against certain liabilities, including liabilities under the
Securities Act, and may be customers of, engaged in transactions with, or
perform services of, the Company or Tupperware in the ordinary course of
business.
Securities may also be offered or sold, if so indicated in the accompanying
Prospectus Supplement, in connection with a remarketing upon their purchase,
in accordance with their terms, by one or more firms ("remarketing firms"),
acting as principals for their own accounts or as agents for the Company or
Tupperware. Any remarketing firm will be identified and the terms of its
agreement, if any, with the Company and/or Tupperware and its compensation
will be described in the accompanying Prospectus Supplement. Remarketing firms
may be entitled under agreements which may be entered into with the Company
and/or Tupperware to indemnification by the Company and/or Tupperware against
certain civil liabilities, including liabilities under the Securities Act, and
may be customers of, engage in transactions with, or perform services for, the
Company or Tupperware in the ordinary course of business.
If so indicated in the accompanying Prospectus Supplement, the Company or
Tupperware will authorize agents and underwriters or dealers to solicit offers
by certain purchasers to purchase Securities from the Company or Tupperware at
the public offering price set forth in the accompanying Prospectus Supplement
pursuant to delayed delivery contracts providing for payments and delivery on
a specified date in the future. Such contracts will be subject to only those
conditions set forth in the accompanying Prospectus Supplement, and the
18
<PAGE>
accompanying Prospectus Supplement will set forth the commission payable for
solicitation of such offers. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of such 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 agents will not have any responsibility in respect of the validity or
performance of such contracts.
Any underwriters, agents or dealers utilized in the sale of Securities will
not confirm sales to accounts over which they exercise discretionary
authority.
LEGAL MATTERS
The validity of the Securities and the Guarantees will be passed upon for
Tupperware by Thomas M. Roehlk, Esq., the Senior Vice President, General
Counsel and Secretary of Tupperware, and Sidley & Austin, counsel to
Tupperware, for the Company by Baker & McKenzie and for any underwriters,
dealers or agents by Mayer, Brown & Platt. As of September 16, 1996, Mr.
Roehlk beneficially owned 35,882 shares of Common Stock of Tupperware,
including 22,581 shares over which he has the right to acquire beneficial
ownership through the exercise of stock options granted under the incentive
plan of Tupperware.
EXPERTS
The consolidated financial statements as of December 30, 1995 and December
31, 1994 and for each of the three years in the period ended December 30,
1995, incorporated in this Prospectus by reference to the Form 10/A4 of
Tupperware Corporation dated May 21, 1996, have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
upon the authority of said firm as experts in auditing and accounting.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee.................. $ 68,966*
Rating Agency Fees............................................. 130,000
Fees and Expenses of Trustee................................... 8,000
Blue Sky Fees and Expenses..................................... 5,000
Printing and Distribution...................................... 200,000
Accountants' Fees and Expenses................................. 75,000
Legal Fees and Expenses........................................ 80,000
Miscellaneous.................................................. 33,034
--------
Total ..................................................... $600,000
========
</TABLE>
- --------
*Actual. All other amounts are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation, a
"derivative action") if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they
had no reasonable cause to believe their conduct was unlawful. A similar
standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred
in connection with the defense or settlement of such actions, and the statute
requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's bylaws, disinterested director vote, stockholder
vote, agreement or otherwise.
The Amended and Restated Certificate of Incorporation of Tupperware provides
that each person who is or was or had agreed to become a director or officer
of Tupperware, or each such person who is or was serving or who had agreed to
serve at the request of the Tupperware Board or an officer of Tupperware as an
employee or agent of Tupperware or as a director, officer or employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
(including the heirs, executors, administrators or estate of such person),
will be indemnified by Tupperware, in accordance with the By-laws of
Tupperware, to the fullest extent permitted from time to time by DGCL, as the
same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits Tupperware to
provide broader indemnification rights than said law permitted Tupperware to
provide prior to such amendment) or any other applicable laws as presently or
hereinafter in effect. In addition, Tupperware may enter into one or more
agreements with any person providing for indemnification greater or different
than that provided in the Restated Certificate of Incorporation.
The By-laws of Tupperware provide that each person who was or is made a
party or is threatened to be made a party to or is involved in any action,
suit, or proceeding, whether civil, criminal, administrative or investigative
(a "Proceeding"), by reason of the fact that he or she or a person of whom he
or she is the legal representative is or was a director, officer or employee
of Tupperware or is or was serving at the request of Tupperware as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such Proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, will be
indemnified and held harmless by
II-1
<PAGE>
Tupperware to the fullest extent authorized by DGCL as the same exists or may
in the future be amended (but, in the case of any such amendment, only to the
extent that such amendment permits Tupperware to provide broader
indemnification rights than said law permitted Tupperware to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred by such person in connection therewith and
such indemnification will continue as to a person who has ceased to be a
director, officer, employee or agent and will inure to the benefit of his or
her heirs, executors and administrators; however, except as described in the
following paragraph with respect to Proceedings to enforce rights to
indemnification, Tupperware will indemnify any such person seeking
indemnification in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
Tupperware Board.
Pursuant to the By-laws of Tupperware, within thirty days after a written
claim has been received by Tupperware, the claimant may at any time thereafter
bring suit against Tupperware to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant will be entitled to be paid
also the expense of prosecuting such claim. The By-laws provide that it will
be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any Proceeding in advance of its
final disposition where the required undertaking, if any is required, has been
tendered to Tupperware) that the claimant has not met the standards of conduct
which make it permissible under the DGCL for Tupperware to indemnify the
claimant for the amount claimed, but the burden of proving such defense will
be on Tupperware. Neither the failure of Tupperware (including the Tupperware
Board, independent legal counsel or stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in the DGCL, nor an actual determination by
Tupperware (including the Tupperware Board, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of
conduct, will be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
The By-laws of Tupperware provide that the right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in the By-laws will not be exclusive of any other right
which any person may have or may in the future acquire under any statute,
provision of the Certificate of Incorporation, the By-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
The By-laws provide that the right to indemnification conferred therein is a
contract right and includes the right to be paid by Tupperware the expenses
incurred in defending any such Proceeding in advance of its final disposition,
except that if DGCL requires, the payment of such expenses incurred by a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a Proceeding, will be made only upon delivery to Tupperware of
an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified under the By-laws or otherwise.
The By-laws permit Tupperware to maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of Tupperware or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not Tupperware would have
the power to indemnify such person against such expense, liability or loss
under the DGCL.
The Restated Certificate of Incorporation of Tupperware provides that a
director of Tupperware will not be personally liable to Tupperware or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
Tupperware or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit.
Tupperware has purchased liability policies which indemnify its officers and
directors, including those of the Company, against loss arising from claims by
reason of their legal liability for acts as officers, subject to limitations
and conditions asset forth in the policies.
II-2
<PAGE>
Pursuant to agreements which Tupperware and the Company may enter into with
underwriters or agents (the form of which is included as an exhibit to this
Registration Statement), officers and directors of Tupperware and the Company
may be entitled to indemnification by such underwriters or agents against
certain liabilities, including liabilities under the Securities Act of 1933,
as amended, arising from information appearing in the Registration Statement
or any Prospectus or Prospectus Supplement which has been furnished to
Tupperware and the Company by such underwriters or agents.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1 Form of Underwriting Agreement.
2 Distribution Agreement by and among Premark International, Inc.,
Tupperware Corporation and Dart Industries Inc. (incorporated by reference
to Exhibit 2 to Tupperware's Registration Statement on Form 10 (No. 1-
11657) filed with the Commission on March 4, 1996).
4(a) Indenture dated as of , 1996, among the Company, Tupperware and
The First National Bank of Chicago, as Trustee.
4(b) Form of Debt Securities.
4(c) Form of Warrant Agreement, including form of Warrant Certificate.
5* Opinion and Consent of Counsel.
12 Computation of Ratio of Earnings to Fixed Charges of Tupperware.
23(a) Consent of Price Waterhouse LLP.
23(b)* Consent of Counsel (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility of Trustee.
</TABLE>
- --------
*To be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
II-3
<PAGE>
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above 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 Tupperware or the Company pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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.
The undersigned Registrants hereby further undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of Tupperware's annual report pursuant to section 13(a) or section 15(d) of
the Securities Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
The undersigned Registrants hereby further undertake that:
(a) 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 Registrants pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall
be deemed to be part of this Registration Statement as of the time it
was declared effective.
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of Tupperware and the Company pursuant to the
provisions referred to in Item 15 (other than the insurance policies
referred to therein) or otherwise, Tupperware and the Company have been
informed 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
Tupperware or the Company of expenses incurred or paid by a director,
officer, or controlling person of Tupperware or the Company in the
successful defense of any action, suit, or proceeding) is asserted
against Tupperware or the Company by such director, officer, or
controlling person in connection with the securities being registered,
Tupperware and the Company will, unless in the opinion of their 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-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE UNDERSIGNED
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 CITY OF ORLANDO, STATE OF FLORIDA, ON THIS
16TH DAY OF SEPTEMBER, 1996.
Tupperware Corporation
/s/ Warren L. Batts
By: _________________________________
Warren L. Batts
Chairman of the Board
and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Warren L. Batts Chairman of the Board and September 16, 1996
____________________________________ Chief Executive Officer
Warren L. Batts and Director (Principal
Executive Officer)
/s/ Paul B. Van Sickle Senior Vice President, September 16, 1996
____________________________________ Finance and Operations
Paul B. Van Sickle (Principal Financial and
Accounting Officer)
* Director September 16, 1996
____________________________________
William O. Bourke
* Director September 16, 1996
____________________________________
Ruth M. Davis, Ph.D.
* Director September 16, 1996
____________________________________
Lloyd C. Elam, M.D.
/s/ E. V. Goings Director September 16, 1996
____________________________________
E. V. Goings
* Director September 16, 1996
____________________________________
Clifford J. Grum
* Director September 16, 1996
____________________________________
Joe R. Lee
* Director September 16, 1996
____________________________________
Joseph E. Luecke
* Director September 16, 1996
____________________________________
Bob Marbut
* Director September 16, 1996
____________________________________
Robert M. Price
</TABLE>
/s/ Thomas M. Roehlk
*By: __________________________
Thomas M. Roehlk
Attorney-in-Fact
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE UNDERSIGNED
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 CITY OF ORLANDO AND STATE OF FLORIDA, ON
THIS 16TH DAY OF SEPTEMBER, 1996.
Tupperware Finance Company B.V.
/s/ Mark H. Bobek
By: _________________________________
Mark H. Bobek
Managing Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Paul B. Van Sickle Managing Director (as September 16, 1996
____________________________________ Principal Executive and
Paul B. Van Sickle Accounting Officer)
/s/ Mark H. Bobek Managing Director (as September 16, 1996
____________________________________ Principal Financial
Mark H. Bobek Officer)
* Managing Director September 16, 1996
____________________________________
Thomas P. O'Neill, Jr.
* Managing Director September 16, 1996
____________________________________
Michael Poteshman
* Managing Director September 16, 1996
____________________________________
Robert J. Saltarelli
* Managing Director September 16, 1996
____________________________________
Christian Skroder
</TABLE>
/s/ Thomas M. Roehlk
*By: __________________________
Thomas M. Roehlk
Attorney-in-Fact
II-6
<PAGE>
Exhibit 1
UNDERWRITING AGREEMENT
September __, 1996
Tupperware Corporation
[Tupperware Netherlands B.V.]
P.O. Box 2353
Orlando, Florida 32802
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that [TUPPERWARE
NETHERLANDS B.V.], a corporation organized under the laws of the Kingdom of The
Netherlands (the "Company"), proposes to issue and sell U.S.$[PRINCIPAL AMOUNT]
aggregate initial offering price of [Full title of Debt Securities] (the "Debt
Securities") [and] [_______ warrants (the "Debt Warrants") to purchase
U.S.$[Principal Amount] aggregate initial offering price of its [title of debt
securities] (the "Debt Warrant Securities")] and TUPPERWARE CORPORATION, a
Delaware corporation (the "Guarantor"), proposes to issue and sell its full and
unconditional guarantees of the payment of principal and interest respecting the
Debt Securities [and Debt Warrant Securities] (the "Guarantees"). (The Debt
Securities, the Debt Warrants and the Guarantees, but not the Debt Warrant
Securities, are collectively referred to herein as the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company and the Guarantor hereby respectively agree to
sell and the Underwriters agree to purchase, severally and not jointly, the
principal amount of Debt Securities and Guarantees [and numbers of Debt
Warrants] set forth below opposite their names at a purchase price of ____% of
the principal amount of Debt Securities [and at a purchase price of $________
per Debt Warrant]:
<PAGE>
Principal Amount of
Debt Securities
(together with the
Name related Guarantees)
---- -------------------
Morgan Stanley & Co.
Incorporated
Goldman, Sachs & Co.
[Insert syndicate list]
Total . . . .
=================
Number of Debt
Name Warrants
---- --------------
Morgan Stanley & Co.
Incorporated
Goldman, Sachs & Co.
[Insert syndicate list]
Total . . . .
=================
[The principal amount of Debt Securities (together with the related
Guarantees) [and number of Debt Warrants] to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities (together with the related Guarantees) and number of Debt Warrants
sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for the Offered Securities [(less any
Offered Securities sold pursuant to delayed delivery contracts)]* upon
delivery thereof at [office] at _________ a.m. (New York time) on September __,
1996, or at such other time, not later than 5:00 p.m. (New York time) on
September __, 1996, as shall be designated by the Manager. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated September __, 1996, and the Prospectus Supplement dated
September __, 1996, including the following:
- ----------------
* To be added only if delayed delivery contracts are contemplated.
<PAGE>
Terms of Debt Securities
Maturity Date: ____________ __, ____
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ______________ __ and
______________ __ commencing
______________ __, ____
Form and Denomination:
Guarantees: Payment of principal and interest fully and unconditionally
guaranteed by the Guarantor.
[Other Terms:]
[Terms of Debt Warrants
Form: _________________, to be evidenced by warrant certificates (the
"Warrant Certificates") and to be issued pursuant to the
provisions of a Debt Warrant Agreement dated as of ___________,
1996 (the "Debt Warrant Agreement") between the Company and
______________, as Debt Warrant Agent.]
[Number of Debt Warrants issued with each $ principal
amount of Debt Securities:]
[Detachable Date:]
Exercise Date:
Expiration Date:
Exercise Price:
Principal Amount of Debt Warrant Securities Purchasable upon Exercise of
one Debt Warrant:
[Other Terms:]
Terms of Debt Warrant Securities
Maturity:
Interest Rate:
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<PAGE>
Redemption Provisions:
Interest Payment Dates:
Form and Denomination:
[Other Terms]:
[The commission to be paid to the Underwriters in respect of the
Offered Securities purchased pursuant to delayed delivery contracts arranged by
the Underwriters shall be ____% of the principal amount of the Debt Securities
(together with the related Guarantees) so purchased and $________ per Debt
Warrant so purchased.]
All provisions contained in the document entitled [Tupperware Finance
Company]/Tupperware Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Guarantees and Warrants to Purchase Debt Securities) dated September
__, 1996, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control and (ii) all references in
such document to a type of security that is not an Offered Security [or a Debt
Warrant Security] shall not be deemed to be a part of this Agreement.
- ----------------
To be added only if delayed delivery contracts are contemplated.
-4-
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
On behalf of themselves and the other Underwriters
named herein
By: MORGAN STANLEY & CO. INCORPORATED
By:
-------------------------------------
Name:
Title:
Accepted:
[TUPPERWARE NETHERLANDS B.V.]
By:
-------------------------
Name:
Title:
TUPPERWARE CORPORATION
By:
-------------------------
Name:
Title:
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<PAGE>
[TUPPERWARE NETHERLANDS B.V.]/
TUPPERWARE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, GUARANTEES AND WARRANTS
TO PURCHASE DEBT SECURITIES)
September __, 1996
From time to time, TUPPERWARE CORPORATION, a Delaware corporation
("Guarantor") and [TUPPERWARE NETHERLANDS B.V.], a corporation organized under
the laws of the Kingdom of the Netherlands and a wholly-owned subsidiary of
Guarantor (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company and Guarantor have filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Debt Securities, Guarantees and Debt Warrants and has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities and the Debt
Warrant Securities, if any, pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"). The term "Registration Statement"
means the registration statement as amended to the date of this Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities and the
Debt Warrant Securities, if any, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "supplement" and "amendment" or "amend" as used in herein
shall include all documents that are deemed to be incorporated by reference in
the Prospectus that are filed
<PAGE>
subsequent to the date of the Basic Prospectus by the Company and Guarantor with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term Contract Securities means the Offered Securities, if any, to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company and
Guarantor may approve (the "Delayed Delivery Contracts"). The term
"Underwriters' Securities" means the Offered Securities other than Contract
Securities.
1. Representations and Warranties. The Company and Guarantor each
represent and warrant to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain,
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply, in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information concerning any Underwriter
furnished to the Company or Guarantor in writing by such Underwriter through the
Manager expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), of the trustee referred to in the Registration Statement.
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<PAGE>
(c) Each of Guarantor and the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
Guarantor and its subsidiaries, taken as a whole.
(d) Each subsidiary of Guarantor and the Company, respectively, has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on Guarantor and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered
by Guarantor and the Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act at 1939, as amended, and has been duly authorized, executed and delivered by
Guarantor and the Company and is a valid and binding agreement of Guarantor and
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(g) The Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by Guarantor and the Company and is a valid and binding
agreement of Guarantor and the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors, rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(h) The Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture
-3-
<PAGE>
and the Debt Warrant Agreement, as the case may be, and delivered to and paid
for (A) by the Underwriters in accordance with the terms of the Underwriting
Agreement or by institutional investors, if any, pursuant to Delayed Delivery
Contracts, in the case of the Offered Securities, and (B) upon exercise of Debt
Warrants pursuant to the Debt Warrant Agreement, in the case of the Debt Warrant
Securities, will be entitled to the benefits of the Indenture and the Debt
Warrant Agreement, as the case may be, and will be valid and legally binding
obligations of Guarantor and the Company, in each case enforceable in accordance
with their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by Guarantor and the Company and are valid
and binding agreements of Guarantor and the Company, enforceable in accordance
with their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(j) The execution and delivery by Guarantor and the Company of, and
the performance by Guarantor and the Company of their respective obligations
under, this Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, any Delayed Delivery Contracts and the Debt Warrant Agreement, if
any, will not contravene any provision of applicable law or the certificate of
incorporation or by-laws of Guarantor or the Company or any agreement or other
instrument binding upon Guarantor or the Company or any of their respective
subsidiaries that is material to Guarantor and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over Guarantor or the Company or any of their
respective subsidiaries, and no consent, approval or authorization or order
of or qualification with any governmental body or agency is required for the
performance by Guarantor or the Company of its obligations under this Agreement,
the Indenture, the Offered Securities, the Debt Warrant Securities, any Delayed
Delivery Contract or the Debt Warrant Agreement, if any, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Offered Securities.
(k) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of (i) the
Company and its subsidiaries,
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<PAGE>
taken as a whole, or (ii) Guarantor and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(l) There are no legal or governmental proceedings pending or
threatened to which Guarantor or the Company or any of their respective
subsidiaries is a party or to which any of the properties of Guarantor or the
Company or any of their respective subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or
filed as required.
(m) Each of Guarantor and the Company and their respective
subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on Guarantor and its
subsidiaries, taken as a whole.
(n) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder.
(o) Neither Guarantor nor the Company is an "investment company" or
an entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Delayed Delivery Contracts. If the Prospectus provides for sales
of Offered Securities pursuant to Delayed Delivery Contracts, Guarantor and the
Company hereby authorize the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery Contracts
may be entered into only with institutional investors approved by Guarantor and
the Company of the types set forth in the Prospectus. On the Closing Date,
Guarantor and the Company will pay to the Manager as compensation for the
accounts of the Underwriters the commission set forth in the Underwriting
Agreement in respect of the Contract Securities. The Underwriters will not have
any responsibility in respect of
-5-
<PAGE>
the validity or the performance of any Delayed Delivery Contracts.
If Guarantor and the Company execute and deliver Delayed Delivery
Contracts with institutional investors, the aggregate amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate amount of Contract Securities; and such reduction shall be applied to
the commitment of each Underwriter pro rata in proportion to the amount of
Offered Securities set forth opposite such Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be applied in other proportions and so advises Guarantor
and the Company; provided, however, that the total amount of Offered Securities
to be purchased by all Underwriters shall be the aggregate amount set forth
above, less the aggregate amount of Contract Securities.
3. Public Offering. Guarantor and the Company are advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Underwriters' Securities as soon after this Agreement
has been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Except as otherwise provided in this
Section 4, payment for the Underwriters' Securities shall be made by certified
or official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities, registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters' Securities to the
Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are
(i) Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "Global Debt Security")
evidencing the Offered Securities that are Debt Securities in bearer form and
(ii) Debt Warrants in bearer form shall be effected only by delivery of a single
permanent global Debt Warrant (the "Global Debt Warrant") evidencing the Offered
Securities that are Debt Warrants in bearer form, in each case to a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") for
-6-
<PAGE>
credit to the respective accounts at Euro-clear or CEDEL of each Underwriter or
to such other accounts as such Underwriter may direct. Any Global Debt Security
or Global Debt Warrant shall be delivered to the Manager not later than the
Closing Date, against payment of funds to the Company in the net amount due to
the Company for such Global Debt Security or Global Debt Warrant, as the case
may be, by the method and in the form set forth herein. Guarantor and the
Company shall cause definitive Debt Securities in bearer form to be prepared and
delivered in exchange for such Global Debt Security in such manner and at such
time as may be provided in or pursuant to the Indenture; provided, however, that
the Global Debt Security shall be exchangeable for definitive Debt Securities in
bearer form only on or after the date specified for such purpose in the
Prospectus. The Offered Debt Warrants shall be evidenced only by a Global Debt
Warrant until their expiration.
5. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) (i) subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date, there shall not have been any
downgrading, nor any notice given of any intended or potential
downgrading or of a possible change that does not indicate the
direction of the possible change, in the rating accorded any of any of
Guarantor's or the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of (a)
Guarantor and its subsidiaries, taken as a whole, or (b) the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus; and
(iii) the Manager shall have received on the Closing Date
certificates, dated the Closing Date and signed respectively by
executive officers of Guarantor and the Company, to the effect set
forth in clause (i) above and to the effect that the representations
and warranties of Guarantor and the Company contained in
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<PAGE>
this Agreement are true and correct as of the Closing Date and that
Guarantor and the Company have complied with all of the agreements and
satisfied all of the conditions on the part of Guarantor and the
Company to be performed or satisfied on or before the Closing Date.
The officer signing and delivering any such certificates may
rely upon the best of his or her knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Baker & MacKenzie, independent counsel for the Company, dated the Closing
Date, to the effect set forth in Exhibit A.
(c) The Manager shall have received on the Closing Date an opinion of
Sidley & Austin, independent counsel for Guarantor, dated the Closing Date,
to the effect set forth in Exhibit B.
(d) The Manager shall have received on the Closing Date an opinion of
Mayer, Brown & Platt, special counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit C.
(e) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Manager,
from Guarantors' and the Company's independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of Guarantor and the Company. In further consideration
of the Underwriters contained herein, Guarantor and the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto or to the Registration
Statement as the Manager may reasonably request.
-8-
<PAGE>
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, and to the dealers (whose
names and addresses the Manager will furnish to Guarantor) to which Offered
Securities may have been sold by the Manager on behalf of the Underwriters
and to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with (i) the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may designate and (ii) any review of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc.
(e) To make generally available to Guarantor's and the Company's
security holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day of the
first full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the
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<PAGE>
Closing Date, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of Guarantor or the Company or warrants to purchase
debt securities of Guarantor or the Company substantially similar to the
Offered Securities or any guarantees of any of the foregoing (other than
(i) the Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
7. Covenants of the Underwriters.
(A) Each of the several Underwriters agrees with Guarantor and the
Company that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold Debt
Securities in bearer form (including any Debt Security in global form that
is exchangeable for Debt Securities in bearer form) to a person who is
within the United States or its possessions or to a United States person or
delivered definitive Debt Securities in bearer form within the United
States or its possessions, (ii) it will not offer or sell Debt Securities
in bearer form during the restricted period to a person who is within the
United States or its possessions or to a United States person and (iii) it
will not deliver within the United States or its possessions definitive
Debt Securities in bearer form that are sold during the restricted period;
(b) it has in effect procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling Debt Securities in
bearer form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United States or
its possessions or to a United States person, except as permitted by the D
Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer form
for the purpose of offering or selling such Debt Securities during the
restricted period, it will either (i) obtain from such affiliate for the
benefit of Guarantor and the Company the representations and agreements
contained in clauses (a), (b) and (c) or (ii) be deemed to have repeated
and confirmed the representations and agreements
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<PAGE>
contained in clauses (a), (b) and (c) with respect to such affiliate;
(e) it will obtain for the benefit of Guarantor and the Company the
representations and agreements contained in clauses (a), (b), (c) and (d)
from any person other than its affiliate with whom it enters into a written
contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(4) for
the offer or sale during the restricted period of Debt Securities in bearer
form;
(f) it will not deliver Debt Securities in bearer form (other than
temporary global Debt Securities) and any coupons appertaining thereto in
definitive form unless Guarantor and the Company has received a signed
certificate in writing (or an electronic certificate described in U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(3)(ii)) stating that on such date
(i) such Debt Security is owned by a person who is not a United States
person, (ii) such Debt Security is owned by a United States person as
defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6) or (iii) such
Debt Security is owned by a financial institution as defined in U.S. Treas.
Reg. Section 1.165-12(c)(1)(v) for purposes of resale during the restricted
period and has not been acquired for the purposes of resale directly or
indirectly within the United States or to United States persons (other than
as permitted by the applicable Treasury Regulations described above); and
(g) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given to them
by the U.S. Internal Revenue Code and regulations thereunder, including the D
Rules. The restricted period is defined at U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(7).
(B) Each of the several Underwriters agrees with Guarantor and the
Company that:
(a) except to the extent permitted under the D Rules, (i) it has not
offered or sold Debt Warrants in bearer form to a person who is within the
United States or its possessions or to a United States person and (ii) it
will not offer or sell Debt Warrants in bearer form at any time to a person
who is within the United States or its possessions or to a United States
person;
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<PAGE>
(b) it has in effect procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling Debt Warrants in
bearer form are aware that such Debt Warrants may not be offered or sold at
any time to a person who is within the United States or its possessions or
to a United States person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt Warrants
in bearer form for purposes of resale in connection with their original
issuance and if it retains Debt Warrants in bearer form for its own
account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Warrants in bearer form for
the purpose of offering or selling such Debt Warrants, it will either (i)
obtain from such affiliate for the benefit of Guarantor and the Company the
representations and agreements contained in clauses (a), (b) and (c) or
(ii) be deemed to have repeated and confirmed the representations and
agreements contained in clauses (a), (b) and (c) with respect to such
affiliate;
(e) it will obtain for the benefit of Guarantor and the Company the
representations and agreements contained in clauses (a), (b), (c) and (d)
from any person other than its affiliate with whom it enters into a written
contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(4) for
the offer or sale of Debt Warrants in bearer form;
(f) upon delivery of the global Debt Warrant it will cause Euroclear
or CEDEL, as the case may be, to transfer an interest in the global Debt
Warrant to the account of the person entitled thereto only after Guarantor
and the Company has received a signed certificate in writing (or an
electronic certificate described in U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(3)(ii)) stating that on such date (i) such beneficial
interest is owned by a person who is not a United States person or, if such
person is a United States person, it is a financial institution (as defined
in U.S. Treas. Reg. Section 1.165-12(c)(1)(v)) purchasing for its own
account or the account of a customer or (ii) such beneficial interest is
owned by a financial institution (described above) for purposes of resale
and has not been acquired for the purposes of resale directly or indirectly
within the United States or to United States persons (other than as
permitted by the applicable Treasury Regulations described above); and
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<PAGE>
(g) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may be
offered, sold, resold or delivered.
Terms used in the preceding paragraph have the meaning given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the D Rules.
8. Indemnification and Contribution. Guarantor and the Company jointly
and severally agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (as amended
or supplemented if Guarantor and the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to Guarantor or the Company in writing by such Underwriter
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if Guarantor and the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Offered Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Guarantor, the Company, their respective directors, their
respective officers who sign the Registration Statement and each person, if any,
who controls Guarantor or the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from Guarantor and the Company to each Underwriter, but only
with reference to informa-
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<PAGE>
tion relating to such Underwriter furnished to Guarantor or the Company by such
Underwriter in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. For purposes of the foregoing sentence, such information is
limited to the following, which is contained in the prospectus supplement and
preliminary prospectus supplement, in each case as amended or supplemented: the
information in the last paragraph of the cover page, in the last paragraph on
page S-2, and in the third, fourth (except for the first sentence thereof),
fifth and sixth paragraphs in the section entitled "Underwriting."
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which proceeding
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any 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 indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by Guarantor, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified
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<PAGE>
party for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first or second paragraph
in this Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by Guarantor and the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
Guarantor or the Company, on the one hand, and of the Underwriters, on the other
hand, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by Guarantor and the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Offered Securities
(before deducting expenses) received by Guarantor and the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of Guarantor or the Company, on the one hand, and of the Underwriters, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
Guarantor or the Company, on the one
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<PAGE>
hand, or by the Underwriters, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
Guarantor and the Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
allegedly untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amounts of Offered Securities purchased by each of
such Underwriters and not joint. The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 8
and the representations and warranties of Guarantor and the Company contained
herein shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
Guarantor, the Company, their respective directors or officers or any person
controlling Guarantor or the Company and (iii) acceptance of and payment for any
of the Offered Securities.
9. Termination. This Agreement shall be subject to termination in the
Manager's absolute discretion, by notice given to Guarantor, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
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<PAGE>
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of Guarantor or the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
10. Defaulting Underwriters. If on the Closing Date any one or more of
the Underwriters shall fail or refuse to purchase Offered Securities that it has
or they have agreed to purchase on such date, and the aggregate amount of
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate amount
of the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names above bears to the
aggregate amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount of Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager, Guarantor and the Company for the purchase of such Offered Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, Guarantor or
the Company. In any such case either the Manager, on the one hand, or Guarantor
and the Company, on the other hand, shall have the right to postpone the Closing
Date but in no event for longer then seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other
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<PAGE>
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Guarantor or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason Guarantor or the Company shall be unable to
perform any of their respective obligations under this Agreement, Guarantor and
the Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Offered
Securities.
11. Miscellaneous. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the jurisdiction of the federal and state courts of the
United States of America (the "U.S. Courts") for any litigation arising out of
or relating to this Agreement, the Offered Securities, the Debt Warrant
Securities, the Indenture and the transactions contemplated hereby and thereby,
waives any objection to the laying of venue of any such litigation in the U.S.
Courts and agrees not to plead or claim in any U.S. Court that such litigation
brought therein has been brought in an inconvenient forum.
The Company hereby irrevocably appoints the Guarantor as its agent for
service of process regarding any litigation arising out of or relating to this
Agreement, the Offered Securities, the Debt Warrant Securities, the Indenture or
the transactions contemplated hereby or thereby.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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<PAGE>
Exhibit A
Opinion of Baker & MacKenzie,
independent counsel for the Company
The opinion of Baker & MacKenzie, independent counsel for the Company,
to be delivered pursuant to Section 5(b) of the Underwriting Agreement shall be
to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
A-1
<PAGE>
(v) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi) the Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vii) the Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and the Debt Warrant Agreement, as the case may
be, and delivered to and paid for (A) by the Underwriters in accordance
with the terms of the Underwriting Agreement or by institutional investors,
if any, pursuant to Delayed Delivery Contracts, in the case of the Offered
Securities, and (B) upon exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture and the Debt Warrant Agreement,
as the case may be, and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
rights of acceleration, if any, and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(viii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company enforceable in accordance with their respective
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability;
A-2
<PAGE>
(ix) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture, the Offered, Securities, the Debt Warrant Securities, any
Delayed Delivery Contracts and the Debt Warrant Agreement, if any, will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval or authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, any Delayed Delivery Contract or the Debt Warrant Agreement, if
any, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities;
(x) the statements (1) in the Prospectus, as amended or supplemented,
under the captions "Description of Debt Securities," "Description of Debt
Warrants," ["Plan of Distribution"] and _______________, (2) respecting the
Company in the Registration Statement under Item 15, (3) respecting the
Company, if any, in "Item 3 - Legal Proceedings" of Guarantor's most recent
annual report on Form 10-K incorporated by reference in the Prospectus and
(4) respecting the Company, if any, in "Item 1 - Legal Proceedings" of Part
II of Guarantor's quarterly reports on Form 10-Q, if any, filed since such
annual report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(xi) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required;
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<PAGE>
(xii) such counsel is of the opinion ascribed to it in the Prospectus
under the caption "[Taxation]";
(xiii) under the laws of the Kingdom of The Netherlands, the choice of
New York law in this Agreement, the Indenture and the Debt Securities is a
valid choice of law, and the Company's submission to jurisdiction, consent
to service of process and appointment of any agent for service of process,
in each case as set forth in the Offered Securities, the Debt Warrant
Securities, the Indenture and the Underwriting Agreement, are valid and
effective;
(xiv) a holder of any Debt Security, the Trustee and any Underwriter
is entitled to sue as plaintiff in the courts of the Kingdom of The
Netherlands for the enforcement of its respective rights against the
Company; and such access to the courts of the Kingdom of The Netherlands
will not be subject to any conditions that are not applicable to residents
of the Kingdom of The Netherlands, citizens of the Kingdom of The
Netherlands or companies incorporated under the laws of the Kingdom of The
Netherlands; and
(xv) the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and are owned by
Guarantor, free and clear of all liens, encumbrances, security interests
and claims.
Such counsel shall also state that no facts have come to its attention
to cause it to believe that (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to):
(i) any part of the Registration Statement when such part became effective (and
as of the date such opinion is delivered) contained (or contains) an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) the Prospectus, as amended or supplemented, if applicable, as of the date
of such opinion is delivered contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Such counsel may state that his belief is based upon his
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification.
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<PAGE>
Exhibit B
Opinion of Sidley & Austin,
independent counsel for Guarantor
The opinion of Sidley & Austin, independent counsel for the Company,
to be delivered pursuant to Section 5(c) of the Underwriting Agreement shall be
to the effect that:
(i) Guarantor has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on Guarantor and its subsidiaries, taken as a whole;
(ii) each subsidiary of Guarantor has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on Guarantor and its subsidiaries, taken as a
whole;
(iii) each of Guarantor and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on Guarantor and
its subsidiaries, taken as a whole;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by Guarantor;
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<PAGE>
(v) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and has been duly authorized, executed and
delivered by Guarantor and is a valid and binding agreement of Guarantor,
enforceable in accordance with its terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(vi) the Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by Guarantor and is a valid and binding agreement of
Guarantor, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vii) the Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and the Debt Warrant Agreement, as the case may
be, and delivered to and paid for (A) by the Underwriters in accordance
with the terms of the Underwriting Agreement or by institutional investors,
if any, pursuant to Delayed Delivery Contracts, in the case of the Offered
Securities, and (B) upon exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture and the Debt Warrant Agreement,
as the case may be, and will be valid and binding obligations of Guarantor,
in each case enforceable in accordance with their respective terms except
as (a) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(viii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by Guarantor and are valid and binding
agreements of Guarantor enforceable in accordance with their respective
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability;
(ix) the execution and delivery by Guarantor of, and the performance
by Guarantor of its obligations under, the
A-2
<PAGE>
Underwriting Agreement, the Indenture, the Offered, Securities, the Debt
Warrant Securities, any Delayed Delivery Contracts and the Debt Warrant
Agreement, if any, will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of Guarantor or any agreement
or other instrument binding upon Guarantor or any of its subsidiaries that
is material to Guarantor and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Guarantor or
any subsidiary, and no consent, approval or authorization or order of or
qualification with any governmental body or agency is required for the
performance by Guarantor of its obligations under the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, any Delayed Delivery Contract or the Debt Warrant Agreement, if
any, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities;
(x) the statements (1) in the Prospectus, as amended or supplemented,
under the captions "Description of Debt Securities," "Description of Debt
Warrants," "Plan of Distribution" and _______________, (2) in the
Registration Statement under Item 15, (3) in "Item 3 - Legal Proceedings"
of Guarantor's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of Guarantor's quarterly reports on Form 10-Q, if any, filed since such
annual report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(xi) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which Guarantor or any of
its subsidiaries is a party or to which any of the properties of Guarantor
or any of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or of
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described or
filed as required;
(xii) such counsel is of the opinion ascribed to it in the Prospectus
under the caption "[Taxation]"; and
A-3
<PAGE>
(xiii) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included therein
as to which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2) is of
the opinion that the Registration Statement and Prospectus, as amended or
supplemented, if applicable (except for financial statements and schedules
included therein as to which such counsel need not express any opinion),
comply as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that no facts have come to its attention
to cause it to believe that (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to):
(i) any part of the Registration Statement when such part became effective (and
as of the date such opinion is delivered) contained (or contains) an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) the Prospectus, as amended or supplemented, if applicable, as of the date
of such opinion is delivered contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Such counsel may state that his belief is based upon his
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification.
A-4
<PAGE>
Exhibit C
Opinion of Mayer, Brown & Platt,
Counsel for the Underwriters
The opinion of Mayer, Brown & Platt, counsel for the Underwriters, to
be delivered pursuant to Section 5(d) of the Underwriting Agreement shall be to
the effect that:
(i) the Underwriting Agreement has been duly authorized, executed and
delivered by Guarantor and the Company;
(ii) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and has been duly authorized, executed and
delivered by Guarantor and the Company and is a valid and binding agreement
of Guarantor and the Company, enforceable in accordance with its terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
rights of acceleration and the enforceability of equitable remedies may be
limited by equitable principles of general applicability;
(iii) the Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by Guarantor and the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
availability of equitable remedies may be limited by equitable principles
of general applicability;
(iv) the Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and the Debt Warrant Agreement, as the case may
be, and delivered to and paid for (A) by the Underwriters in accordance
with the terms of the Underwriting Agreement or by institutional investors,
if any, pursuant to Delayed Delivery Contracts, in the case of the Offered
Securities, and (B) upon exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture and the Debt Warrant Agreement,
as the case may be, and will be valid and binding obligations of Guarantor
and the Company in each case enforceable in accordance with their
respective terms except as (a) the enforceability
B-1
<PAGE>
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration, if any, and the
enforceability of equitable remedies may be limited by equitable principles
of general applicability;
(v) the Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by Guarantor and the Company and are valid and
binding agreements of Guarantor and the Company, enforceable in accordance
with their respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vi) the statements in the Prospectus under "Description of Debt
Securities," "Description of Debt Warrants," "Plan of Distribution" and
"Underwriting" insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(vii) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included therein
as to which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2) is of
the opinion that the Registration Statement and Prospectus, as amended or
supplemented, if applicable (except for financial statements and schedules
included therein as to which such counsel need not express any opinion),
comply as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that no facts have come to its attention
to cause it to believe that (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to):
(i) any part of the Registration Statement when such part became effective (and
as of the date such opinion is delivered) contained (or contains) an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) the Prospectus, as amended or supplemented,
B-2
<PAGE>
if applicable, as of the date of such opinion is delivered contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Such counsel may state that his belief is based
upon his participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents thereof, but are
without independent check or verification.
B-3
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
__________________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from TUPPERWARE CORPORATION,
a Delaware corporation ("Guarantor") and [TUPPERWARE FINANCE COMPANY], a
corporation organized under the laws of the Kingdom of the Netherlands and a
wholly-owned subsidiary of Guarantor (the "Company"), and Guarantor and the
Company agree to sell to the undersigned the securities described in Schedule A
annexed hereto (the "Securities"), offered by the Prospectus dated September __,
1996 and Prospectus Supplement dated September __, 1996, receipt of copies of
which are hereby acknowledged at a purchase price stated in Schedule A and on
the further terms and conditions set forth in this agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from Guarantor and the Company
Securities in the principal amount and numbers on the delivery dates set forth
in Schedule A. Each such date on which Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of ____________________, New York, N.Y., at 10:00 A.M. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than three full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
under-
I-1
<PAGE>
signed is subject and (2) Guarantor and the Company shall have sold, and
delivery shall have taken place to the underwriters (the "Underwriters") named
in the Prospectus Supplement referred to above of, such part of the Securities
as is to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, Guarantor and the Company will mail or deliver to the undersigned
as its address set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company and a copy of the opinion of counsel for
Guarantor delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this agreement is acceptable to Guarantor and the Company, it is
requested that Guarantor and the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding agreement, as of the date first
above written, between Guarantor, the Company and the undersigned when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Yours very truly,
(Purchaser)
By
(Title)
(Address)
I-2
<PAGE>
Accepted:
[TUPPERWARE FINANCE COMPANY]
By: __________________________
TUPPERWARE CORPORATION
By: __________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
- ----------------- --------------------- ----------
- ----------------- --------------------- ----------
- ----------------- --------------------- ----------
I-3
<PAGE>
SCHEDULE A
----------
Securities:
- ----------
Principal amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery Dates:
- --------------
I-4
<PAGE>
Exhibit 4(a)
================================================================================
TUPPERWARE FINANCE COMPANY B.V.,
Issuer
TUPPERWARE CORPORATION,
Guarantor
AND
______________________________________,
Trustee
-------------------------
INDENTURE
Dated as of __________, 1996
--------------------------
================================================================================
<PAGE>
<TABLE>
<CAPTION>
|| TABLE OF CONTENTS
<S> <C>
PARTIES......................................................... 1
RECITALS........................................................ 1
Authorization of Indenture................................. 1
Compliance with Legal Requirements......................... 1
Purpose of and Consideration for Indenture................. 1
ARTICLE ONE
DEFINITIONS
Section 1.1. Certain Terms Defined.................................. 1
Authenticating Agent................................... 2
Board of Directors..................................... 2
Board Resolution....................................... 2
Business Day........................................... 2
Commission............................................. 2
Consolidated Net Tangible Assets....................... 2
Corporate Trust Office................................. 3
Coupon................................................. 3
Coupon Security........................................ 3
Dollar................................................. 3
Event of Default....................................... 3
Exempted Indebtedness.................................. 3
Foreign Currency....................................... 3
Funded Debt............................................ 4
Guarantee.............................................. 4
Guarantor.............................................. 4
Guarantor Request...................................... 4
Holder, Holder of Securities, Securityholder........... 4
Indenture.............................................. 4
Issuer................................................. 4
Issuer Notice.......................................... 4
Issuer Order, Issuer Request........................... 4
Officer's Certificate.................................. 5
Opinion of Counsel..................................... 5
Original Issue Date.................................... 5
Original Issue Discount Security....................... 5
Outstanding............................................ 5
Paying Agent........................................... 6
Person................................................. 6
Place of Payment....................................... 6
principal.............................................. 6
Principal Property..................................... 6
Registered Holder...................................... 6
Registered Security.................................... 6
Responsible Officer.................................... 6
Restricted Subsidiary.................................. 6
Security, or Securities................................ 7
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Series, Series of Securities.......................... 7
Stated Maturity....................................... 7
Subsidiary............................................ 7
Tranche............................................... 7
Trustee............................................... 7
Trust Indenture Act of 1939, Trust Indenture
Act................................................. 7
United States......................................... 7
United States Alien .................................. 7
Unregistered Security................................. 8
vice president........................................ 8
Yield to Maturity..................................... 8
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally....................................... 8
Section 2.2 Form of Trustee's Certificate of Authentication....... 9
Section 2.3 Amount Unlimited; Issuable in Series.................. 9
Section 2.4 Authentication and Delivery of Securities............. 12
Section 2.5 Execution of Securities............................... 14
Section 2.6 Certificate of Authentication......................... 15
Section 2.7 Denomination and Date of Securities;
Payments of Interest................................ 15
Section 2.8 Registration, Transfer and Exchange................... 18
Section 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities................................... 22
Section 2.10 Cancellation of Securities, Destruction
Thereof............................................. 24
Section 2.11 Temporary Securities.................................. 24
Section 2.12 Compliance with Certain Laws and Regulations.......... 25
Section 2.13 Unconditional Guarantee............................... 25
Section 2.14 Execution of Guarantees............................... 27
Section 2.15 Assumption by Guarantor............................... 27
Section 2.16 Appointment of Agents With Respect to
Certain Calculations............................... 28
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
Section 3.1 Payment of Principal and Interest..................... 29
Section 3.2 Offices for Payment, etc.............................. 29
Section 3.3 Appointment to Fill a Vacancy in Office of
Trustee............................................. 31
Section 3.4 Paying Agents......................................... 31
Section 3.5 Restrictions on Secured Debt.......................... 32
Section 3.6 Limitation on Sale and Lease-Back
Transactions........................................ 33
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
Section 3.7 Additional Amounts........................................... 35
Section 3.8 Existence.................................................... 36
Section 3.9 Maintenance of Properties.................................... 36
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER, THE GUARANTOR AND THE TRUSTEE
Section 4.1 Issuer and Guarantor to Furnish Trustee Information
as to Names and Addresses of Securityholders............... 36
Section 4.2 Preservation and Disclosure of Securityholders' Lists........ 37
Section 4.3 Reports by the Issuer and the Guarantor...................... 39
Section 4.4 Reports by the Trustee....................................... 40
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default.......................................... 41
Section 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt............................................. 44
Section 5.3 Application of Proceeds...................................... 46
Section 5.4 Suits for Enforcement........................................ 48
Section 5.5 Restoration of Rights on Abandonment of
Proceedings................................................ 48
Section 5.6 Limitations on Suits by Securityholders...................... 48
Section 5.7 Unconditional Right of Securityholders to
Institute Certain Suits.................................... 49
Section 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default............................. 49
Section 5.9 Control by Securityholders................................... 49
Section 5.10 Waiver of Past Defaults...................................... 50
Section 5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances................................... 51
Section 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs............................................... 51
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee;
Prior to Default; During Default........................... 51
Section 6.2 Certain Rights of the Trustee................................ 53
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
Section 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of
Proceeds Thereof........................................... 54
Section 6.4 Trustee and Agents May Hold Securities;
Collections, etc........................................... 54
Section 6.5 Moneys Held by Trustee....................................... 55
Section 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim................................................ 55
Section 6.7 Right of Trustee to Rely on Officer's Certificate, etc....... 55
Section 6.8 Disqualification of Trustee; Conflicting Interests........... 56
Section 6.9 Persons Eligible for Appointment as Trustee.................. 56
Section 6.10 Resignation and Removal; Appointment of Successor Trustee.... 56
Section 6.11 Acceptance of Appointment by Successor Trustee............... 58
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee........................................ 59
Section 6.13 Preferential Collection of Claims Against the Issuer
and the Guarantor.......................................... 60
Section 6.14 Appointment of Authenticating Agent.......................... 64
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders.................. 65
Section 7.2 Proof of Execution of Instruments............................ 66
Section 7.3 Holders to Be Treated as Owners.............................. 66
Section 7.4 Securities Owned by Issuer or Guarantor Deemed
Not Outstanding............................................ 67
Section 7.5 Right of Revocation of Action Taken.......................... 67
Section 7.6 Record Date for Determination of Holders Entitled
to Vote.................................................... 68
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Securityholders............................................ 68
Section 8.2 Supplemental Indentures With Consent of
Securityholders............................................ 70
Section 8.3 Effect of Supplemental Indenture............................. 71
Section 8.4 Documents to Be Given to Trustee............................. 71
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures................................................. 71
</TABLE>
iv
<PAGE>
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
<TABLE>
<CAPTION>
<S> <C> <C>
Section 9.1 Guarantor May Consolidate, etc., on Certain
Terms........................................... 72
Section 9.2 Successor Corporation Substituted................ 72
Section 9.3 Opinion of Counsel to Trustee.................... 73
ARTICLE TEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 10.1 Option to Effect Defeasance or Covenant
Defeasance...................................... 73
Section 10.2 Defeasance and Discharge......................... 74
Section 10.3 Covenant Defeasance.............................. 74
Section 10.4 Conditions to Defeasance or Covenant
Defeasance...................................... 75
Section 10.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions........................ 77
Section 10.6 Reinstatement.................................... 78
Section 10.7 Return of Unclaimed Moneys Held by Trustee and
Paying Agent.................................... 78
Section 10.8 Satisfaction and Discharge of Indenture.......... 78
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer and Guarantor
Exempt from Individual Liability................ 80
Section 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders.......... 80
Section 11.3 Successors and Assigns of Issuer and
Guarantor Bound by Indenture.................... 80
Section 11.4 Notices and Demands on Issuer, Guarantor,
Trustee and Securityholders..................... 80
Section 11.5 Officer's Certificates and Opinions of
Counsel; Statements to Be Contained
Therein......................................... 81
Section 11.6 Payments Due on Saturdays, Sundays and
Holidays........................................ 83
Section 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939..................... 83
Section 11.8 New York Law to Govern; Submission to
Jurisdiction.................................... 83
Section 11.9 Counterparts..................................... 84
Section 11.10 Effect of Headings............................... 84
</TABLE>
v
<PAGE>
<TABLE>
<S> <C> <C>
Section 11.11 Determination of Principal Amount................ 84
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article......................... 84
Section 12.2 Notice of Redemption; Partial Redemptions........ 84
Section 12.3 Payment of Securities Called for Redemption...... 86
Section 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption........ 87
Section 12.5 Mandatory and Optional Sinking Funds............. 87
ARTICLE THIRTEEN
PAYMENT OF ADDITIONAL AMOUNTS
Section 13.1 Applicability of Article......................... 90
Section 13.2 Payment of Additional Amounts.................... 90
Section 13.3 Optional Tax Redemption.......................... 91
</TABLE>
TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
Exhibit A - Form of Certification to Be Given By Person
Entitled to Receive Bearer Security
||
vi
<PAGE>
CROSS REFERENCE SHEET*/1/
Provisions of Trust Indenture Act of 1939, as amended, and Indenture dated
as of ______________, 1996, among TUPPERWARE FINANCE COMPANY B.V., TUPPERWARE
CORPORATION and ______________________________, Trustee:
<TABLE>
<CAPTION>
Section of the Act Section of Indenture
------------------ --------------------
<S> <C>
310(a)(1) and (2) 6.9
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10
310(c) Inapplicable
311(a) 6.13(a) and (c)(1) and (2)
311(b) 6.13(b)
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(a) and (b)
312(c) 4.2(c)
313(a) 4.4(a)(i), (ii), (iii), (iv),
(v) and (vi)
313(b)(1) Inapplicable
313(b)(2) 4.4
313(c) 4.4
313(d) 4.4
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9 and 5.10
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4(a) and (b)
318(a) 11.7
</TABLE>
- -----------------------
/1/
* This Cross Reference Sheet is not part of the Indenture.
<PAGE>
THIS INDENTURE, dated as of _____________, 1996 among TUPPERWARE FINANCE
COMPANY B.V., a Netherlands corporation (the "Issuer"), TUPPERWARE CORPORATION,
a Delaware corporation (the "Guarantor") and _________________, as Trustee (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized the execution and delivery of
this Indenture and the Guarantees (as defined herein) and deems it appropriate
from time to time to issue its Guarantees of the Securities on the terms herein
provided; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
Holders thereof, the Issuer, the Guarantor and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles
<PAGE>
in the United States, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted in the United States
at the time of any computation. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole, as
supplemented and amended from time to time, and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more Series.
"Board of Directors" means either the Board of Directors of the Issuer
or the Guarantor or a duly authorized committee of the Board of Directors of the
Guarantor duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary (or other duly authorized person) of the
Issuer or the Guarantor to have been duly adopted by the Board of Directors of
the Issuer or the Guarantor, as the case may be, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means, except as may otherwise be provided in the form
of Securities of any particular Series, with respect to any Place of Payment,
any day, other than a Saturday or Sunday, that is not a legal holiday, or a day
on which banking institutions are authorized or required by law or regulation to
close in The City of New York or in that Place of Payment, or with respect to
Securities denominated in a Foreign Currency, the capital city of the country of
such Foreign Currency.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Consolidated Net Tangible Assets" means the total assets of the
Guarantor and its consolidated subsidiaries as shown on or reflected in its
balance sheet less (a) all current liabilities (excluding Funded Debt), (b)
advances to entities accounted for on the equity method of accounting, and (c)
intangible assets. "Intangible assets" means the aggregate value (net of any
applicable reserves), as shown on or reflected in such balance sheet, of: (i)
all trade names, trademarks, licenses, patents,
2
<PAGE>
copyrights and goodwill; (ii) organizational and development costs; (iii)
deferred charges (other than prepaid items such as insurance, taxes, interest,
commissions, rents and similar items and tangible assets being amortized); and
(iv) unamortized debt discount and expense, less unamortized premium.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at ____________________________________________.
"Coupon" means any interest coupon appertaining to any Coupon
Security.
"Coupon Security" means any Security authenticated and delivered with
one or more Coupons appertaining thereto.
"Dollar" means the coin or currency of the United States which as of
the time of payment is legal tender for the payment of public and private debts.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exempted Indebtedness" means the sum of (i) all outstanding
indebtedness of the Guarantor and its Restricted Subsidiaries incurred after the
date of this Indenture and secured by liens proscribed in Section 3.5, and (ii)
the aggregate of present values (discounted at a rate per annum equal to the
average interest borne by all Outstanding Securities determined on a weighted
average basis and compounded semi-annually) of the obligations of the Guarantor
or any Restricted Subsidiaries for rental payments during the remaining term of
all leases (including any period for which any such lease has been extended or
may, at the option of the lessor, be extended) of all Principal Property other
than those leases expressly permitted by paragraph (b) of Section 3.6. The net
amount of rent required to be paid under any such lease for any such term 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 and similar charges and
contingent rents such as those based on sales. In the case of any such 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.
"Foreign Currency" means a currency issued by the government of any
country other than the United States.
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"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendible beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized at the date of such computation and to be included for the
purposes of the definition of Consolidated Net Tangible Assets both as an asset
and as Funded Debt at the respective amounts so capitalized).
"Guarantee" means the agreement of the Guarantor in the form set forth
in Section 2.13, to be endorsed on the Securities authenticated and delivered
hereunder.
"Guarantor" means the Person named as the Guarantor in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor Request" means a written request of the Guarantor, signed
in its name by, the Chief Executive Officer, President or Chief Financial
Officer of the Guarantor.
"Holder," "Holder of Securities," "Securityholder" or other similar
terms mean the holder of an Unregistered Security or a Registered Holder of a
Registered Security and, when used with respect to any Coupon, means the holder
thereof.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular Series of
Securities established as contemplated hereunder.
"Issuer" means (except as otherwise provided in Article Six)
Tupperware Finance Company B.V., a Netherlands corporation and, subject to
Article Nine, its successors and assigns.
"Issuer Notice" means the confirmation of the Issuer, transmitted by
telex, telecopy or in writing to the Trustee of the terms of the issuance of any
Securities issuable in Tranches.
"Issuer Order" or "Issuer Request" means a written order or request of
the Issuer, signed in its name by, one of its directors.
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"Officer's Certificate" means a certificate signed by a director or
other authorized person of the Issuer or by the Chairman of the Board,
President, Chief Financial Officer or the Treasurer of the Guarantor, as the
case may be, and delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 11.5. Unless otherwise indicated, an
Officer's Certificate of the Issuer only shall be required.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer or the Guarantor, as
the case may be. Each such opinion shall include the statements provided for in
Section 11.5.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding" when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any Paying Agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
holders of such Securities (if the Issuer shall act as its own Paying
Agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
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"Paying Agent" means any Person (which may include the Issuer)
authorized by the Issuer to pay the principal of or interest, if any, on any
Security on behalf of the Issuer.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
limited liability company 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 interest, if any,
on the Securities of that Series are payable as specified pursuant to Section
3.2.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Principal Property" means any manufacturing facility owned by the
Guarantor or any Restricted Subsidiary and located within the United States 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% percent of
Consolidated Net Tangible Assets, other than any such facility or portion
thereof which the Board of Directors of the Guarantor reasonably determines is
not material to the business conducted by the Guarantor and its Subsidiaries as
a whole.
"Registered Holder" when used with respect to a Registered Security
means the person in whose name such Security is registered in the Security
register.
"Registered Security" means any Security registered in the Security
register maintained by the Trustee.
"Responsible Officer" when used with respect to the Trustee shall mean
any officer in the corporate trust department (or any successor group) of the
Trustee including any vice president, assistant vice president, assistant
secretary, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary (i) substantially all of
the property of which is located, and substantially all of the business of which
is carried on, within the United States and (ii) which owns or operates one or
more Principal Properties; provided, however, that Restricted Subsidiary
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shall not include (a) a Subsidiary which is primarily engaged in the business of
a finance or insurance company and branches thereof and (b) any Subsidiary which
acts exclusively as a holding company of a Subsidiary described in clause
(ii)(a) of this sentence.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Series" or "Series of Securities" means a series of Securities.
Except in Sections 1.1 - "Outstanding," 2.3 and 7.4 and Articles Five, Six and
Eleven, the terms "Series" or "Series of Securities" shall also mean a Tranche
in the event that the applicable Series may be issued in separate Tranches.
"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 any corporation, of which at least a majority of
the Voting Stock is at the time owned directly or indirectly by the Guarantor or
by the Guarantor and its other Subsidiaries. The term "Voting Stock" means
outstanding shares of stock having 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 because of default in dividends or some other default.
"Tranche" means all Securities of the same Series which have the same
issue date, maturity date and other terms.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, any successor
trustee.
"Trust Indenture Act of 1939" or "Trust Indenture Act" (except as
otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was originally executed.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax
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purposes, a foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
"Unregistered Security" means any Security not registered as to
principal.
"vice president" when used with respect to the Issuer, the Guarantor
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 of "vice president".
"Yield to Maturity" means the yield to maturity on a Series of
Securities, calculated at the time of issuance of such Series, or, if
applicable, at the most recent redetermination of interest on such Series, and
calculated by the Issuer in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally. The Securities of each Series (including any
temporary or permanent global Securities) and the Coupons, if any, shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a Board Resolution of the Issuer (or, to the
extent established pursuant to, rather than set forth in, such Board Resolution,
in an Officer's Certificate) 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 (the provisions
of which shall be appropriate to reflect the terms of each Series of Securities,
including the currency or denomination, which may be Dollars or Foreign
Currency) and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of the Securities and Coupons,
if any.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
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Section 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
_____________________________,
as Trustee
By_____________________________
Authorized Officer
Section 2.3 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 of the Issuer, or to the extent
established pursuant to, rather than set forth in, such resolution, established
in an Officer's 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 title shall
distinguish the Securities of the Series from all other Securities issued
by the Issuer);
(2) any limit upon the aggregate principal amount of the Securities of
the Series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Sections 2.8, 2.9, 2.11 or 12.3);
(3) whether Securities of the Series are to be issuable as Registered
Securities, Unregistered Securities or both, whether any Securities of the
Series are to be issuable initially in temporary global form and whether
any Securities of the Series are to be issuable in permanent global form
with or without Coupons and, if so, (i) whether beneficial owners of
interests in any such permanent global Security may exchange such interests
for Securities of such Series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 2.8, (ii) the name
of the depositary with respect to any global Security, and (iii) any
circumstances in addition to or in lieu of those set forth in clause (2) of
the sixth paragraph of Section 2.8
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in which any permanent global Security which does not permit the beneficial
owners of such global Security to exchange such interests for Securities of
such Series as contemplated in clause (i) of this paragraph may be
exchanged in whole or in part for Securities registered, and any transfer
of such global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such global Security or a
nominee thereof. Unless otherwise specified, the Securities of a Series
shall be issuable under a book-entry system in the form of one or more
registered permanent global Securities, without coupons, which do not
permit the beneficial owners of such global Security(ies) to exchange such
interests for Securities of such Series as contemplated in clause (i) of
this paragraph, and such global Security(ies) shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE;
(4) the Person to whom any interest on any Registered Security of the
Series shall be payable, if other than the Person in whose name the
Security (or one or more predecessor Securities) is registered at the close
of business on the record date for such interest, the manner in which, or
the Person to whom, any interest on any Unregistered Security of the Series
shall be payable, if otherwise than upon presentation and surrender of the
Coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary global
Security on an interest payment date will be paid;
(5) the date or dates on which the principal of the Securities of the
Series is payable;
(6) the rate or rates (or formula for determining such 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 record dates for the determination
of Holders to whom interest is payable;
(7) whether the interest rate or interest rate formula, as the case
may be, for Securities of the Series may be reset at the option of the
Issuer and, if so, the date or dates on
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which such interest rate or interest rate formula, as the case may be, may
be reset;
(8) the place or places where the principal and interest on Securities
of the Series shall be payable (if other than as provided in Section 3.2),
any Registered Securities of the Series may be surrendered for registration
of transfer, Securities of the Series may be surrendered for exchange and
notices and demands to or upon the Issuer or the Guarantor in respect of
the Securities of the Series and this Indenture may be served;
(9) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the Series may be
redeemed or repurchased, in whole or in part, at the option of the Issuer
or repaid at the option of the Holders;
(10) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the Series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(11) the denominations in which any Registered Securities of the
Series may be issued, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Unregistered Securities of the Series may be issued, if other than the
denomination of $5,000 and any integral multiple thereof;
(12) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series), including such
legends as required by law or as the Issuer deems necessary or appropriate,
the form of any Coupons or temporary global Security which may be issued
and the forms of any certificates which may be required hereunder or which
the Issuer may require in connection with the offering, sale, delivery or
exchange of Unregistered Securities;
(13) the currency or currencies, including composite currencies, in
which payments of interest or principal are payable with respect to the
Securities of the Series if other than the currency of the United States;
(14) if the amount of payments of principal of or interest on the
Securities of any Series may be determined with reference to the
differences in the price of or rate of
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exchange between any indexes, currencies or commodities, the manner in
which such amounts shall be determined;
(15) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which thereof pursuant to
Section 5.1 or provable in bankruptcy pursuant to Section 5.2;
(16) whether Securities of the Series are issuable in Tranches;
(17) any additional Events of Default or restrictive covenants with
respect to the Securities of such Series which are not set forth herein;
(18) if applicable, that the Securities of the Series, in whole or any
specified part, shall not be defeasible pursuant to Section 10.2 or Section
10.3 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Issuer or the Guarantor to defease such
Securities shall be evidenced;
(19) any trustees, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such
Series; and
(20) any other terms or conditions upon which the Securities of the
Series are to be issued (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, except as provided in the immediately succeeding paragraph, and
except as may otherwise be provided in or pursuant to such Board Resolution or
in any such indenture supplemental hereto. All Securities of any one Series need
not be issued at the same time, and unless otherwise provided, a Series may be
reopened for issuances of additional Securities of such Series.
Each Series may be issued in one or more Tranches. Except as provided in
the foregoing paragraph, all Securities of a Tranche shall have the same terms,
including issue date, except that Securities of the same Tranche may be issued
in different denominations of the same currency or composite currency.
Section 2.4 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any Series with duly executed Guarantees endorsed
thereon, having attached thereto appropriate Coupons, if any, executed by the
Issuer to the Trustee for authentication, together with an Issuer Order for the
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authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and deliver such Securities; provided,
however, that in connection with its original issuance, no Unregistered Security
shall be mailed or otherwise delivered to any location in the United States; and
provided, further, that an Unregistered Security may be delivered in connection
with its original issuance only if the Person entitled to receive such
Unregistered Security shall have furnished a certificate in the form of Exhibit
A-1 hereto dated no earlier than 15 days prior to the earlier of the date on
which such Unregistered Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Unregistered Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Unregistered Security, then,
for purposes of this Section and Section 2.11, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivered in connection with its original issuance of such beneficial owner's
interest in such permanent global Unregistered Security. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive and
(subject to Section 6.1) shall be fully protected in relying upon:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities are not to be delivered to the
Issuer;
(2) any Board Resolution, Officer's Certificate and/or supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the
forms of the Securities of any such Series were established;
(3) an Officer's Certificate setting forth the form and terms of the
Securities stating that the form and terms of the Securities have been
established pursuant to Section 2.1 and 2.3 and comply with this Indenture,
and covering such other matters as the Trustee may reasonably request;
(4) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture;
(b) the authentication and delivery of such Securities by the
Trustee are authorized under the provisions of this Indenture;
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(c) such Securities, with the Guarantees endorsed thereon, when
authenticated and delivered by the Trustee and issued by the Issuer in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Issuer
and the Guarantor enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general principles of equity, and will be
entitled to the benefits of this Indenture; and
(d) no consent, approval, authorization, order, registration or
qualification of or with any governmental agency or body having
jurisdiction over the Issuer or the Guarantor is required for the
execution and delivery of the Securities of such Series by the Issuer
or the Guarantor, except such as have been obtained (except that no
opinion need be expressed as to state securities or Blue Sky laws).
(e) covering such other matters as the Trustee may reasonably
request.
provided, however, that in the case of any Series issuable in Tranches, if the
Trustee has previously received the documents referred to in Section 2.4(1)-(4)
with respect to any Tranche of such Series, the Trustee shall authenticate and
deliver Securities of such Series executed and delivered by the Issuer for
original issuance upon receipt by the Trustee of the applicable Issuer Notice.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under this Indenture in a manner not reasonably
acceptable to the Trustee.
Section 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by any of its directors (or other duly authorized person),
and the Guarantees endorsed thereon shall be signed on behalf of the Guarantor
by its President, Chief Financial Officer or Treasurer, under its corporate seal
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. The seal of the
Issuer or the Guarantor may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities or the
Guarantees. Typographical and other minor errors or defects in any such
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reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security or Guarantee that has been duly authenticated and
delivered by the Trustee. Any Coupons attached to any Unregistered Security
shall be executed on behalf of the Issuer by the manual or facsimile signature
of any such officer of the Issuer.
In case any officer or director (or other duly authorized person) of the
Issuer or the Guarantor who shall have signed any of the Securities, Guarantees
or Coupons shall cease to be such officer or director (or other duly authorized
person) before the Security, Guarantee or Coupon so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security, Guarantee or Coupon nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security, Guarantee or Coupon
had not ceased to be such officer or director (or other duly authorized person)
of the Issuer or the Guarantor, as the case may be; and any Security, Guarantee
or Coupon may be signed on behalf of the Issuer or the Guarantor by such persons
as, at the actual date of the execution of such Security, Guarantee or Coupon,
shall be the proper officers or directors (or other duly authorized persons) of
the Issuer or the Guarantor, as the case may be, although at the date of the
execution and delivery of this Indenture any such person was not such an officer
or director (or other duly authorized person).
Section 2.6 Certificate of Authentication. Only such Securities and Coupons
appertaining thereto as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the
manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
The Trustee shall not authenticate or deliver any Unregistered Security
until any matured Coupons appertaining thereto have been detached and canceled,
except as otherwise provided or permitted by this Indenture.
Section 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable in denominations as shall be specified as
contemplated by Section 2.3. In the absence of any such specification with
respect to the Securities of any Series, Registered Securities of such Series
shall be issuable in denominations of $1,000 and any integral multiple thereof,
and Unregistered Securities of such Series shall be issuable in denominations of
$5,000 and any integral multiple thereof, and
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interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Securities shall be numbered, lettered, or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication,
each Unregistered Security shall be dated as of the date of original issuance of
the first Security of such Series to be issued, shall bear interest from the
date and shall be payable on the dates, in each case, which shall be specified
as contemplated by Section 2.3.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid, in the case of
Registered Securities, 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 the payment of such interest and, in the case of Unregistered
Securities, upon surrender of the Coupon appertaining thereto in respect of the
interest due on such interest payment date.
The term "record date" as used with respect to any interest payment date
(except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, if such interest payment date is the first day
of a calendar month, the close of business on the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day
of a calendar month, the close of business on the first day of such calendar
month, whether or not such record date is a Business Day.
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 (called
"defaulted interest" for the purpose of this Section) shall forthwith cease to
be payable to the Registered Holder on the relevant regular record date by
virtue of his having been such Holder; and such defaulted interest may be paid
by the Issuer or the Guarantor, at its election in each case, as provided in
clause (1) or clause (2) below:
(1) The Issuer or the Guarantor may elect to make payment of any
defaulted interest to the Persons in whose names any such Registered
Securities (or their respective 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
Issuer or the Guarantor shall notify the Trustee in writing of the amount
of defaulted interest proposed to be
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paid on each Security of such Series and the date of the proposed payment,
and at the same time the Issuer or the Guarantor 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 in respect of Registered Securities
of such Series which shall be not more than 15 nor 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 Issuer and the Guarantor of such special record
date and, in the name and at the expense of the Issuer or the Guarantor,
shall cause notice of the proposed payment of such defaulted interest and
the special record date thereof to be mailed, first class postage prepaid,
to each Registered Holder 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 mailed as aforesaid, such defaulted interest in
respect of Registered Securities of such Series shall be paid to the Person
in whose names such Securities (or their respective predecessor Securities)
are registered on such special record date and such defaulted interest
shall no longer be payable pursuant to the following clause (2).
(2) The Issuer or the Guarantor may make payment of any defaulted
interest on the Securities of any Series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of that Series may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Issuer or the
Guarantor to the Trustee of the proposed payment pursuant to this clause,
such payment shall be deemed practicable by the Trustee.
Any defaulted interest payable in respect of any Security of any Series
which is not a Registered Security shall be payable pursuant to such procedures
as may be satisfactory to the Trustee in such manner that there is no
discrimination as between the Holders of Registered Securities and other
Securities of the same Series, and notice of the payment date therefor shall be
given by the Trustee, in the name and at the expense of the Issuer or the
Guarantor, in the manner specified in Section 11.4.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 2.8 Registration, Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each Series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Registered Securities as in this Article provided.
Such register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any Series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities (with duly executed Guarantees
endorsed thereon) of the same Series in authorized denominations for a like
aggregate principal amount.
At the option of the Holder, Registered Securities of any Series may be
exchanged for other Registered Securities of the same Series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities (with duly executed
Guarantees endorsed thereon) which the Holder making the exchange is entitled to
receive. Except as otherwise specified as contemplated by Section 2.3,
Unregistered Securities may not be issued in exchange for Registered Securities.
At the option of the Holder, Unregistered Securities of any Series may be
exchanged for Registered Securities of the same Series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Unregistered Securities to be exchanged at any such office or agency,
with all unmatured Coupons, if any, and all matured Coupons, if any, in default
thereto appertaining. If the Holder of an Unregistered Security is unable to
produce any such unmatured Coupons and all matured Coupon or Coupons or matured
Coupon or Coupons in default, such exchange may be effected if the Unregistered
Securities are accompanied by payment in funds acceptable to the Issuer in an
amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by
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the Issuer, the Guarantor and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
3.2, interest represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case an Unregistered Security of any
Series is surrendered at any such office or agency in exchange for a Registered
Security of the same Series and like tenor after the close of business at such
office or agency on any record date and before the opening of business at such
office or agency on the relevant interest payment date, such Unregistered
Security shall be surrendered without the Coupon relating to such interest
payment date and interest will not be payable on such interest payment date in
respect of the Registered Security issued in exchange for such Unregistered
Security, but will be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
Notwithstanding the foregoing, except as otherwise contemplated by Section
2.3, any permanent global Security shall be exchangeable only as provided in
this Section 2.8. If the beneficial owners of interests in a permanent global
Security are entitled to exchange such interests for Securities of such Series
and of like tenor and principal amount of another authorized form and
denomination, as contemplated by Section 2.3, then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Issuer shall deliver to the Trustee definitive Securities of that
Series (with duly executed Guarantees endorsed thereon) in aggregate principal
amount equal to the principal amount of such permanent global Security, executed
by the Issuer. On or after the earliest date on which such interests may be so
exchanged, such permanent global Securities shall be surrendered from time to
time by the depositary holding such global security and in accordance with
instructions given to the Trustee and such depositary (which instructions shall
be in writing but need not comply with Section 11.5 or be accompanied by an
Opinion of Counsel), as shall be specified in the Issuer Order with respect to
the Trustee, as the Issuer's agent for such purpose, to be exchanged, in whole
or in part, for definitive Securities of the same Series (with duly executed
Guarantees endorsed thereon) without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such surrendered
permanent global Security, a like aggregate principal amount of definitive
Securities of the same Series (with duly executed Guarantees endorsed thereon)
of authorized denominations and of like tenor as the portion of such permanent
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global Security to be exchanged which (unless the Securities of the Series are
not issuable both as Unregistered Securities and as Registered Securities, in
which case the definitive Securities exchanged for the permanent global Security
shall be issuable only in the form which the Securities are issuable, as
contemplated by Section 2.3) shall be in the form of Unregistered Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of that Series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that no Unregistered Security delivered
in exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following
any such exchange in part, such permanent global Security shall be returned by
the Trustee to the depositary or such other depositary referred to above in
accordance with the instructions of the Issuer referred to above. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any regular record date and before the opening of business at such
office or agency on the relevant interest payment date, or (ii) any special
record date and before the opening of business at such office or agency on the
related proposed date for payment of interest or defaulted interest, as the case
may be, will not be payable on such interest payment date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will be
payable on such interest payment date or proposed date for payment, as the case
may be, only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
The provisions of clauses (1), (2), (3) and (4) below shall apply only to
permanent registered global Securities which do not permit the beneficial owners
of interests in such global Security to exchange such interests for Securities
of such Series and of like tenor and principal amount of another authorized form
and denomination as contemplated by Section 2.3:
(1) Each global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such global Security
shall constitute a single Security for purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture (other than as
contemplated by Section 2.3), no global Security may be exchanged in whole
or in part for Securities registered, and no transfer of a global Security
in whole or
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in part may be registered, in the name of any Person other than the
Depositary for such global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Issuer that it is unwilling or unable to
continue as Depositary for such global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act and, in either case, a
successor depositary is not appointed by the Issuer within 90 days of
receipt by the Issuer of such notice or of the Issuer becoming aware of
such ineligibility, (B) there shall have occurred and be continuing an
Event of Default with respect to such global Security, (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated in
Section 2.3(3)(iii), or (D) the Issuer in its sole discretion at any time
determines not to have all of the Securities of a Series represented by a
global Security and notifies the Trustee thereof.
(3) Subject to clause (2) above, any exchange of a global Security for
other Securities may be made in whole or part, and all Securities issued in
exchange for a global Security or any portion thereof shall be registered
in such names as the Depositary for such global Security shall direct.
(4) Every Security authenticated and delivered upon registration or
transfer of, or in exchange of or in lieu of a global Security or any
portion thereof, whether pursuant to this Section 2.8, Section 2.9, Section
8.5 and Section 12.2 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
global Security or a nominee thereof.
Upon presentation for registration of any Unregistered Securities of any
Series which by its terms is registrable as to principal, at the office or
agency of the Issuer to be maintained as provided in Section 3.2, such Security
shall be registered as to principal in the name of the Holder thereof and such
registration shall be noted on such Security. Any Security so registered shall
be transferable on the registry books of the Issuer upon presentation of such
Security at such office or agency for similar notation thereon, but such
Security may be discharged from registration by being in a like manner
transferred to bearer, whereupon transferability by delivery shall be restored.
Unregistered Securities shall continue to be subject to successive registrations
and discharges from registration at the option of the Holders thereof.
Unregistered Securities shall be transferable by delivery, except while
registered as to principal. Registration of any Coupon Security shall not
effect the transferability by delivery of
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the Coupons appertaining thereto which shall continue to be payable to bearer
and transferable by delivery.
All Securities (with Guarantees endorsed thereon) and Coupons issued upon
any transfer or exchange of Securities shall be the valid obligations of the
Issuer and the Guarantor, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities, Guarantees and Coupons
surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuer or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Security registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer or the Guarantor may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Securities, other than exchanges
pursuant to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Issuer 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 any selection of Securities of that Series to be
redeemed and ending at the close of business on (A) if Securities of the Series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the Series are issuable
as Unregistered Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the Series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Unregistered Security so selected for redemption except that such an
Unregistered Security may be exchanged for a Registered Security of that Series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security or Coupon shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the Issuer, the Trustee
shall authenticate and deliver a new Security of the same Series (with the
Guarantee thereon executed by the Guarantor) or Coupon, bearing
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a number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security or Coupon, or in lieu of and substitution for the
Security or Coupon so destroyed, lost or stolen. In every case the applicant for
a substitute Security or Coupon shall furnish to the Issuer and the Guarantor
and to the Trustee and to any agent of the Issuer and the Guarantor or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon, the Issuer and the
Guarantor 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.
In case any Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and the Guarantor and to
the Trustee and any agent of the Issuer and the Guarantor or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Guarantor and the Trustee and any agent of the
Issuer and the Guarantor or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security of any Series or Coupon issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer and the Guarantor, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities of such Series or Coupons duly authenticated
and delivered hereunder. All Securities or Coupons shall be held and owned upon
the express condition that, to the extent permitted by the law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or
payment of
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negotiable instruments or other securities without their surrender.
Section 2.10 Cancellation of Securities, Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit (whether immediately or thereafter so credited) against
any payment in respect of a sinking or analogous fund and all Coupons
surrendered for payment or exchange, shall, if surrendered to the Issuer or the
Guarantor or any agent of the Issuer or the Guarantor or the Trustee, be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities and Coupons held by it
and deliver a certificate of destruction to the Issuer and the Guarantor. If the
Issuer or the Guarantor shall acquire any of the Securities and Coupons, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities and Coupons unless and until the
same are delivered to the Trustee for cancellation.
Section 2.11 Temporary Securities. Pending the preparation of definitive
Securities of any Series, the Issuer may execute, and upon an Issuer Order the
Trustee shall authenticate and deliver (with duly executed Guarantees endorsed
thereon), 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, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities and Guarantees may determine, as evidenced by their execution of such
Securities and Guarantees. In the case of any Series issuable as Unregistered
Securities, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, if temporary
Securities of any Series are issued, the Issuer 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 (with duly
executed Guarantees endorsed thereon) upon surrender of the temporary Securities
of such Series at the office or agency of the Issuer maintained pursuant to
Section 3.2 for the purpose of exchanges of Securities of such Series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any Series (accompanied by any unmatured Coupons
appertaining thereto) the Issuer and the Guarantor shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like aggregate principal
amount of definitive Securities
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of the same Series (with duly executed Guarantees endorsed thereon) and of like
tenor of authorized denominations; provided, however, that no definitive
Unregistered Security shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Unregistered Security shall
be delivered in exchange for a temporary Unregistered Security only in
compliance with the conditions set forth in Section 2.4. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any Series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same Series and of like tenor
authenticated and delivered hereunder.
Section 2.12 Compliance with Certain Laws and Regulations.
--------------------------------------------
If any Unregistered Securities are to be issued in any Series of
Securities, the Issuer will use reasonable efforts to provide for arrangements
and procedures designed pursuant to then applicable laws and regulations, if
any, to ensure that Unregistered Securities are sold or resold, exchanged,
transferred and paid only in compliance with such laws and regulations and
without adverse consequences to the Issuer.
Section 2.13 Unconditional Guarantee.
-----------------------
The Guarantee to be set forth on each Security shall be in substantially
the following form:
FOR VALUE RECEIVED, Tupperware Corporation, a Delaware corporation (the
"Guarantor"), hereby unconditionally guarantees to the Holder of the Security
upon which this Guarantee is endorsed [and any Coupons appertaining thereto] the
due and punctual payment of the principal of, sinking fund payment, if any,
premium, if any, or interest on said Security, when and as the same shall become
due and payable, whether at maturity, upon redemption or otherwise, according to
the terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether the
Issuer has available the funds to make such payment as the same shall become due
and payable. In case of the failure of the Issuer punctually to pay any such
principal, sinking fund payment, if any, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and
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payable, whether at maturity, upon redemption, or otherwise, and as if such
payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security [or Coupon] or said Indenture,
the absence of any action to enforce the same, any waiver or consent by the
Holder of said Security [or Coupon] with respect to any provisions thereof, the
recovery of any judgment against the Issuer or any action to enforce the same,
or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to said Security [or Coupon]
or indebtedness evidenced thereby, and all demands whatsoever, and covenants
that this Guarantee will not be discharged except by complete performance of the
obligations contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security [and to the rights of any Holder of any Coupon] against the Issuer in
respect of any amounts paid by the Guarantor pursuant to the provisions of this
Guarantee; provided, however, that the Guarantor shall not, without the consent
of the Holders of all of the Securities [and the Holders of all Coupons] then
outstanding, be entitled to enforce or to receive any payments arising out of or
based upon such right of subrogation until the principal of and interest on all
Securities shall have been paid in full or payment thereof shall have been
provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal or interest by the Issuer on the Securities to the Holders
of the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is paid by such Holder to such trustee in bankruptcy, then and
to the extent of such repayment, the obligations of the Guarantor hereunder
shall remain in full force and effect.
The Guarantor hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened prior to the
creation and issuance of this Guarantee and to constitute the same as the legal,
valid and binding obligation of the Guarantor enforceable in accordance with its
terms, have been done and performed and have happened in due and strict
compliance with applicable laws.
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This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Security until the certificate of authentication on such
Security shall have been signed by the Trustee (or the Authenticating Agent).
This Guarantee shall be governed by the laws of the State of New York.
All terms used in this Guarantee which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, TUPPERWARE CORPORATION has caused this Guarantee to be
signed in its corporate name by the facsimile signature of one of its officers
thereunto duly authorized and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted or otherwise reproduced hereon.
TUPPERWARE CORPORATION
By: _____________________________
Authorized Officer
The form of Guarantee shall be modified or supplemented to the extent
necessary to reflect any additional obligations of the Guarantor applicable to
it pursuant to the terms of any Series of Securities.
Section 2.14 Execution of Guarantees.
-----------------------
To evidence the Guarantee to the Holders specified in Section 2.13, the
Guarantor hereby agrees to execute the Guarantees, in substantially the form
above recited, to be endorsed on each Security authenticated and delivered by
the Trustee (or the Authenticating Agent). Each such Guarantee shall be signed
on behalf of the Guarantor as set forth in Section 2.4 prior to the
authentication of the Security on which it is endorsed, and the delivery of such
Security by the Trustee (or the Authenticating Agent, after the authentication
thereof hereunder, shall constitute due delivery of such Guarantee on behalf of
the Guarantor.
Section 2.15 Assumption by Guarantor.
-----------------------
(a) The Guarantor may, without the consent of the Holders, assume all of
the rights and obligations of the Issuer hereunder with respect to a Series of
Securities and under the Securities of such Series if, after giving effect to
such assumption, no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing. Upon such an assumption, the Guarantor shall
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execute a supplemental indenture evidencing its assumption of all such rights
and obligations of the Issuer and the Issuer shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such Series.
(b) The Guarantor shall assume all of the rights and obligations of the
Issuer hereunder with respect to a Series of Securities and under the Securities
of such Series if, upon a default by the Issuer in the due and punctual payment
of the principal, sinking fund payment, if any, premium, if any, or interest on
such Securities, the Guarantor is prevented by any court order or judicial
proceeding from fulfilling its obligations under Section 2.13 with respect to
such Series of Securities. Such assumption shall result in the Securities of
such Series becoming the direct obligations of the Guarantor and shall be
effected without the consent of the Holders of the Securities of any Series.
Upon such an assumption, the Guarantor shall execute a supplemental indenture
evidencing its assumption of all such rights and obligations of the Issuer, and
the Issuer shall be released from its liabilities hereunder and under such
Securities as obligor on the Securities of such Series.
Section 2.16 Appointment of Agents With Respect to Certain Calculations.
The Issuer may appoint an Agent or Agents with respect to one or more
Series of Securities which Agent or Agents shall be authorized to determine the
rate or rates of interest applicable to the Securities of any Series from time
to time in effect, the amount of principal or premium, if any, payable on the
Securities of any Series and the rates of exchange applicable to the Securities
of any Series denominated in a currency other than United States dollars from
time to time in effect, all in accordance with the terms of the Securities of
such Series. Wherever reference is made in this Indenture to any such
calculation by the Trustee, it shall be deemed to refer to the calculation by
such agent or agents. Such agent, upon calculating the amounts so to be
calculated pursuant to the terms of the Securities of any Series shall
communicate promptly in writing the amounts so calculated to the Issuer, the
Guarantor and the Trustee. Absent manifest error, all amounts so calculated
shall be binding on the Issuer, the Guarantor, the Trustee and the Holders of
the Securities of such Series.
Any such agent may resign at any time by giving written notice thereof to
the Issuer, the Guarantor and to the Trustee. The Issuer may at any time
terminate the agency of any such agent by giving written notice thereof to such
agent, the Guarantor and to the Trustee. Upon receiving such a notice of
resignation or upon such a termination, the Issuer may appoint a successor agent
and
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shall give notice of such appointment to all Holders of Securities in the manner
provided in Section 11.4.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
Section 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each Series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such Series in accordance with the terms of the Securities of
such Series, any Coupons appertaining thereto and this Indenture.
The interest on Unregistered Securities shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. The interest on any temporary
Unregistered Security shall be paid, as to any installment of interest evidenced
by a Coupon attached thereto, if any, only upon presentation and surrender of
such Coupon, and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest.
Section 3.2 Offices for Payment, etc. If Securities of a Series are
issuable only as Registered Securities, the Issuer will maintain 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 Issuer or the
Guarantor in respect of the Securities of that Series and this Indenture may be
served. Except as otherwise specified as contemplated by Section 2.3, if
Securities of a Series are issuable as Unregistered Securities, the Issuer will
maintain (A) in the Borough of Manhattan, The City of New York, or in the City
of Chicago an office or agency where any Registered Securities of that Series
may be surrendered for registration of transfer, where Securities of that Series
may be surrendered for exchange, where notices and demands to or upon the Issuer
in respect of the Securities of that Series and this Indenture may be served and
where Unregistered Securities of that Series and related Coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, outside the United States, an office or agency where
Securities of that Series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Securities
of that Series pursuant to Section 3.7); provided, however, that if the
Securities of that Series are listed on The International Stock Exchange,
London, the Luxembourg Stock Exchange or any other stock
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exchange located outside the United States and such stock exchange shall so
require, the Issuer will maintain a Paying Agent for the Securities of that
Series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that Series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, outside the United States, an office or agency where any Registered
Securities of that Series may be surrendered for registration of transfer, where
Securities of that Series may be surrendered for exchange and where notices and
demands to or upon the Issuer in respect of the Securities of that Series and
this Indenture may be served. The Issuer will give prompt written notice to the
Trustee and the Holders of the location, and any change in the location, of any
such office or agency. If at any time the Issuer shall fail to maintain any such
required office or agency in respect of any Series of Securities or shall fail
to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that Series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Unregistered Securities of that Series and the related Coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Unregistered Securities of that Series pursuant to Section 3.7) at an office
maintained by the Trustee in London, and the Issuer hereby appoints the same as
its agent to receive such respective presentations, surrenders, notices and
demands.
Except as otherwise specified as contemplated by Section 2.3, no payment of
principal or interest on Unregistered Securities shall be made at any office or
agency of the Issuer in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a bank located in
the United States, provided, however, that, if the Securities of a Series are
denominated and payable in Dollars, payment of principal of and interest on any
Unregistered Security (including any additional amounts payable on Securities of
such Series pursuant to Section 3.7) shall be made at the office of the Issuer's
Paying Agent in the Borough of Manhattan, The City of New York, or the City of
Chicago if (but only if) payment in Dollars of the full amount of such
principal, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Issuer in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Issuer may also from time to time designate one or more other offices
or agencies where the Securities of one or more Series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain an office or
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agency in accordance with the requirements set forth above for Securities of any
Series for such purposes. The Issuer will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any change
in the location of any such other office or agency.
Unless otherwise specified pursuant to Section 2.3, the Trustee is
appointed Paying Agent and Security Registrar.
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall
at all times be a Trustee with respect to each Series of Securities hereunder.
Section 3.4 Paying Agents. Whenever the Issuer shall appoint a Paying Agent
other than the Trustee with respect to the Securities of any Series, it will
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such Agent shall agree with the Trustee, subject to the provisions of this
Section,
(a) that it will hold all sums received by it as such Agent for the
payment of the principal of or interest on the Securities of such Series or
Coupons (whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such Series or Coupons) in trust for the benefit of
the Holders of the Securities of such Series or of the Trustee, and upon the
occurrence of an Event of Default pay over all such sums received by it to the
Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or
by any other obligor on the Securities of such Series) to make any payment of
the principal of or interest on the Securities of such Series or Coupons when
the same shall be due and payable,
(c) that it will give the Trustee notice of any change of address of any
Holder of which it is aware, and
(d) that it will comply with the provision of the Trust Indenture Act
applicable to it as a Paying Agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such Series or Coupons, deposit with the Paying
Agent a sum sufficient to pay such principal or interest so becoming due, and
(unless such Paying Agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
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If the Issuer shall act as its own Paying Agent with respect to the
Securities of any Series or Coupons, it will, on or before each due date of the
principal of or interest on the Securities of such Series or Coupons, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such Series or Holders of such Coupons a sum sufficient to pay such principal or
interest so becoming due. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all Series of Securities or Coupons hereunder, or for any
other reason, pay or cause to be paid to the Trustee all sums held in trust for
any such Series by the Issuer or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
Section 3.5 Restrictions on Secured Debt. The Guarantor will not itself,
and will not permit any Restricted Subsidiary to, incur, issue, assume, or
guarantee any loans, whether or not evidenced by negotiable instruments or
securities, or any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (loans, and notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being hereinafter in this
Section 3.5 called "Debt"), secured after the date hereof by pledge of, or
mortgage or lien on, any Principal Property of the Guarantor or any Restricted
Subsidiary or any shares of capital stock of or Debt of any Restricted
Subsidiary (mortgages, pledges and liens being hereinafter in this Section 3.5
called "Mortgage" or "Mortgages"), without effectively providing that the
Securities (together with, if the Guarantor shall so determine, any other Debt
of the Guarantor or such Restricted Subsidiary then existing or thereafter
created which is not subordinated to the Securities) shall be secured equally
and ratably with (or, at the option of the Guarantor, prior to) such secured
Debt, so long as such secured Debt shall be so secured, unless, after giving
effect thereto, Exempted Indebtedness does not exceed 10% of Consolidated Net
Tangible Assets; provided, however, that this Section 3.5 shall not apply to,
and there shall be excluded from Exempted Indebtedness in any computation under
this Section 3.5:
(1) Debt secured by Mortgages on property of, or on any shares of
capital stock of or Debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
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(2) Debt secured by Mortgages in favor of the Guarantor or any
Restricted Subsidiary;
(3) Debt secured by Mortgages in favor of any governmental body to
secure progress, advance or other payments pursuant to any contract or
provision of any statute;
(4) Debt secured by Mortgages on property, shares of capital 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 thereof or construction thereon or to secure any
Debt incurred prior to, at the time of, or within 180 days after the later
of the acquisition of such property, shares of capital stock or Debt or the
completion of construction, for the purpose of financing all or any part of
the purchase price thereof or construction thereon;
(5) Debt secured by Mortgages securing obligations issued by a State,
territory or possession of the United States, any political subdivision of
any of the foregoing, or the District of Columbia, or any instrumentality
of any of the foregoing to finance the acquisition or construction of
property; or
(6) 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 (5), inclusive; provided, however, that
such extension, renewal or replacement Mortgage shall be limited to all or
part of the same property, shares of capital stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such property)
and such extension, renewal or replacement shall not be for an amount which
is greater than the Mortgage extended, renewed or replaced.
Section 3.6 Limitation on Sale and Lease-Back Transactions. (a) The
Guarantor will not itself, and will not permit any Restricted Subsidiary to,
enter into any transaction after the date hereof with any bank, insurance
company or other lender or investor, or any such transaction to which any such
bank, company, lender or investor is a party, providing for the leasing by the
Guarantor or a Restricted Subsidiary of any Principal Property which has been or
is to be sold or transferred by the Guarantor or such Restricted Subsidiary to
such bank, company, lender or investor, or any person to whom funds have been or
are to be advanced by such bank, company, lender or investor on the security of
such Principal Property (herein referred to as a "sale and leaseback
transaction") unless, after giving effect thereto, Exempted Indebtedness would
not exceed 10% of Consolidated Net Tangible Assets.
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(b) The covenant described in paragraph (a) of this Section 3.6 shall not
apply to, and there shall be excluded from Exempted Indebtedness in any
computation under this Section 3.6 or Section 3.5, debt with respect to, any
sale and leaseback transaction if:
(1) the lease in such sale and lease back transaction is for a period,
including renewal rights, of not in excess of three years, or
(2) the Guarantor or a Restricted Subsidiary, within 180 days after
the sale or transfer shall have been made by the Guarantor or by a
Restricted Subsidiary, applies an amount equal to the greater of the net
proceeds of the sale of the Principal Property leased pursuant to such
arrangement or the fair market value of the Principal Property so leased at
the time of entering into such arrangement (as determined in any manner
approved by the Board of Directors of the Guarantor in good faith) to
(a) the retirement of the Securities, other Funded Debt of the
Issuer or Guarantor ranking on a parity with or senior to the
Securities, or Funded Debt of a Restricted Subsidiary; provided,
however, that the amount to be applied to the retirement of such
Funded Debt of the Issuer, Guarantor or a Restricted Subsidiary shall
be reduced by (x) the principal amount of any Securities (or other
notes or debentures constituting such Funded Debt) delivered within
such 180-day period to the Trustee or other applicable trustee for
retirement and cancellation and (y) the principal amount of such
Funded Debt, other than items referred to in the preceding clause (x),
voluntarily retired by the Guarantor or a Restricted Subsidiary within
180 days after such sale, and provided, further, that, notwithstanding
the foregoing, no retirement referred to in this clause (a) may be
effected by any payment at maturity or pursuant to any mandatory
sinking fund payment or any mandatory prepayment provision; or
(b) the purchase of other property which will constitute a
Principal Property having a fair market value, in the good faith
opinion of the Board of Directors of the Guarantor, at least equal to
the fair market value of the Principal Property leased in such sale
and lease back transaction, or
(3) such sale and leaseback transaction is entered into prior to, at
the time of, or within 180 days after the later of the acquisition of the
Principal Property or the completion of construction thereon, or
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(4) the lease in such sale and leaseback transaction secures or
relates to obligations issued by a State, territory or possession of the
United States, or any political subdivision of any of the foregoing, the
District of Columbia, or any instrumentality of any of the foregoing to
finance the acquisition or construction of property, or
(5) such sale and leaseback transaction is entered into between the
Guarantor and a Restricted Subsidiary or between Restricted Subsidiaries.
Section 3.7 Additional Amounts.
If the Securities of a Series provide for the payment of additional
amounts, the Issuer or the Guarantor will pay to the Holder of any Security of
such Series or any Coupon appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or interest on, or in respect of, any Security of
any Series or payment of any related Coupon or the net proceeds received on the
sale or exchange of any Security of any Series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a Series provide for the payment of additional
amounts, at least 10 days prior to the first interest payment date with respect
to that Series of Securities (or if the Securities of that Series will not bear
interest prior to maturity, the first day on which a payment of principal is
made), and at least 10 days prior to each date of payment of principal or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officer's Certificate, the Issuer or the Guarantor will
furnish the Trustee and the Issuer's principal Paying Agent or Paying Agents, if
other than the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of or
interest on the Securities of that Series shall be made to Holders of Securities
of that Series or any related Coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that Series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or Coupons and the Issuer or the Guarantor will pay to the Trustee or
such Paying Agent the
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additional amounts required by this Section. The Issuer and the Guarantor
covenant to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
Section 3.8 Existence. Subject to Article Nine, the Guarantor will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Guarantor shall not be required to preserve any such right or
franchise if any of the Chief Executive Officer, President or Chief Financial
Officer of the Guarantor shall determine in good faith that the preservation
thereof is no longer desirable in the conduct of the business of the Guarantor
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 3.9 Maintenance of Properties. The Guarantor will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary 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 Guarantor 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 the
Guarantor from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the good faith judgment of the
Guarantor, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER, THE GUARANTOR AND THE TRUSTEE
Section 4.1 Issuer and Guarantor to Furnish Trustee Information as to Names
and Addresses of Securityholders. Each of the Issuer and the Guarantor covenants
and agrees that it will furnish or cause to be furnished to the Trustee a list
in such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Registered Securities of each Series:
(a) semiannually and not more than 10 days after each record date for the
payment of interest on such Securities, as hereinabove
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specified, as of such record date and on dates to be determined pursuant to
Section 2.3 for non-interest bearing securities in each year, and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer and the Guarantor of any such request as of a
date not more than 15 days prior to the time such information is furnished,
provided that if and so long as the Trustee shall be the Security Registrar for
such Series, such list shall not be required to be furnished but in any event
the Issuer and the Guarantor shall be required to furnish such information
concerning the Holders of Unregistered Securities which is known to them;
provided, further, that the Issuer or the Guarantor shall have no obligation to
investigate any matter relating to any Holder of an Unregistered Security or any
Holder of a Coupon.
Section 4.2 Preservation and Disclosure of Securityholders' Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each Series of
Securities contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as Security Registrar
for such Series, if so acting. The Trustee may destroy any list furnished to it
as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter 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 other Holders of
Securities of a particular Series (in which case the applicants must all hold
Securities of such Series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
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 to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section, or
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(ii) inform such applicants as to the approximate number of Holders of
Securities of such Series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such Series or all Securities, as the case may
be, whose name and address appear in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a) of this Section,
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 of Securities of such Series or all Securities, as the case may
be, or could 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 such 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 Securityholders 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) Each and every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Issuer, the Guarantor and the Trustee that
neither the Issuer, the Guarantor nor the Trustee nor any agent of the Issuer,
the Guarantor or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Section, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
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Section 4.3 Reports by the Issuer and the Guarantor. Each of the Issuer
and the Guarantor covenants:
(a) to file with the Trustee, within 15 days after the Issuer or the
Guarantor, as the case may be, 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 Commissioner
may from time to time by rules and regulations prescribe) which the Issuer or
the Guarantor, as the case may be, may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
and if the Issuer or the Guarantor is not required to file information,
documents, or reports pursuant to either of such Sections, then to 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, or 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;
(b) to 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 Issuer and
the Guarantor, as the case may be, with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and to
the extent required by Sections 4.4(c) and 11.4, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents, and
reports required to be filed by the Issuer and the Guarantor, as the case may
be, pursuant to subsection (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time to
time by the Commission; and
(d) to furnish to the Trustee, not less often than annually within 60 days
after the end of the respective fiscal year a brief certificate from the
principal executive officer, principal financial officer or principal accounting
officer of each of the Issuer and the Guarantor as to his or her knowledge of
the Issuer's or Guarantor's, as the case may be, compliance with all conditions
and covenants under this Indenture. For purposes of this paragraph, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
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Section 4.4 Reports by the Trustee. (a) On or before [JULY 1] in each
year following the date hereof, so long as any Securities are outstanding
hereunder, the Trustee shall transmit by mail as provided below to the
Securityholders of each Series, as hereinafter in this Section provided, a brief
report dated [MAY 1] with respect to any of the following events which may have
occurred within the previous 12 months (but if no such event has occurred within
such period no report need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(iii) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee, as such, which remain unpaid on the date of such report and
for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of any Series, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities of any Series Outstanding on the date of such report;
(iv) the amount, interest rate, and maturity date of all other
indebtedness owing by the Issuer or the Guarantor (or by any other obligor
on the Securities) to the Trustee in its individual capacity on the date of
such report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(v) any change to the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities which the Trustee has not
previously reported; and
(vii) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and which
in its opinion materially affects the Securities, except action in respect
of a default, notice of which has been or is to be withheld by it in
accordance with the provisions of Section 5.11.
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(b) The Trustee shall transmit to the Securityholders of each Series, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee, as such,
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if such report has not yet been so
transmitted, since the date of this Indenture) for the reimbursement of which it
claims or may claim a lien or charge prior to that of the Securities of such
Series on property or funds held or collected by it as Trustee and which it has
not previously reported pursuant to this subsection (b), except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
Securities of such Series Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to all
registered Holders of Securities, as the names and addresses of such Holders
appear upon the registry book of the Issuer and to such Holders of Unregistered
Securities as have, within the two years preceding such notice, filed their
names and addresses with the Trustee for that purpose, and, except in the case
of reports pursuant to subsection (b) of this Section 4.4, to all Holders whose
names and addresses appear in the information preserved at the time of such
notice by the Trustee in accordance with the provisions of Section 4.2(a).
(d) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and the Guarantor and be filed by
the Trustee with each stock exchange upon which the Securities of any applicable
Series are listed and also with the Commission. The Issuer and the Guarantor
agree to notify the Trustee with respect to any Series when and as the
Securities of such Series become admitted to trading on any national securities
exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default" with respect to Securities of any Series whatever
used herein means each one of the following events which shall have occurred and
be continuing (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
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order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the
Securities of such Series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any of
the Securities of such Series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the
same shall become due and payable by the terms of the Securities of such Series;
or
(d) default in the performance, or breach, of any covenant or warranty of
the Issuer or the Guarantor in respect of the Securities of such Series (other
than a covenant or warranty in respect of the Securities of such Series a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a period
of 90 days after notice thereof has been received by both the Issuer and the
Guarantor from the Trustee or the Holders of at least 25% in principal amount of
the Outstanding Securities of such Series affected thereby, 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
(e) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer or the Guarantor in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or the Guarantor or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(f) the Issuer or the Guarantor shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or the Guarantor or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
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(g) any other Event of Default provided in the supplemental indenture or
Board Resolution under which such Series of Securities is issued or in the form
of Security for such Series.
If an Event of Default with respect to Securities of any Series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that Series may declare the entire principal amount (or, if any
Securities of that Series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) of all the Securities of that Series to be due and payable immediately,
by a notice in writing to the Issuer and the Guarantor (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.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any Series shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer or the
Guarantor pay or deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such Series and the
principal of any and all Securities of such Series which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such Series, to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the nonpayment of the principal of Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of such Series,
each Series treated as a separate class, then outstanding, by written notice to
the Issuer, the Guarantor and to the Trustee, may waive all defaults with
respect to such Series and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
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For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
Each of the Issuer and the Guarantor covenants that (a) in case default shall be
made in the payment of any installment of interest on any of the Securities of
any Series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default
shall be made in the payment of all or any part of the principal of any of the
Securities of any Series when the same shall have become due and payable,
whether upon maturity of the Securities of such Series or upon any redemption or
by declaration or otherwise, then upon demand of the Trustee, the Issuer or the
Guarantor will pay to the Trustee for the benefit of the Holders of the
Securities of such Series and the Holders of any Coupons appertaining thereto
the whole amount that then shall have become due and payable on all Securities
of such Series or such Coupons for principal of or interest, as the case may be
(with interest to the date of such payment upon the overdue principal and, to
the extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such Series); and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any Series to the Persons entitled thereto,
whether or not the principal of and interest on the Securities of such Series
are overdue.
In case the Issuer or the Guarantor shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to
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institute any action or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final decree
against the Issuer, the Guarantor or other obligor upon such Securities and
collect in the manner provided by law out of the property of the Issuer, the
Guarantor or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer, the
Guarantor or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer, the Guarantor or such other
obligor or their respective property, or in case of any other comparable
judicial proceedings relative to the Issuer, the Guarantor or other obligor
under the Securities of any Series, or to the creditors or property of the
Issuer, the Guarantor or such other obligor, the Trustee, irrespective of
whether the principal of any 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 pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Securities of any Series, 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 reasonable compensation
to the Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the Securityholders and
the Holders of any Coupons appertaining thereto allowed in any judicial
proceedings relative to the Issuer, the Guarantor or other obligor upon all
Securities of any Series, or to the creditors or property of the Issuer, the
Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities of any Series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all
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amounts received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the Holders of the
Securities and the Holders of any Coupons appertaining thereto to make payments
to the Trustee, and, in the event that the Trustee shall consent to the making
of payments directly to the Holders of Securities and Coupons, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith and all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or Coupons or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities or Coupons or the Guarantees may be enforced by the
Trustee without the possession of any of the Securities or Coupons or the
production thereof at any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities and Holders of any Coupons in
respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities and Coupons appertaining thereto in respect to which
such action was taken, and its shall not be necessary to make any Holders of
such Securities and Coupons appertaining thereto parties to any such
proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of the Securities of any Series shall be
applied in the following order at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities and any Coupons appertaining thereto
in
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respect of which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such Series in reduced principal
amounts in exchange for the presented Securities of like Series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such Series
in respect of which moneys have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
6.6;
SECOND: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
Series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such Series for principal and interest,
with interest upon the overdue principal, and (to the extent that payment
of such interest is permissible by law and that such interest has been
collected by the Trustee) upon overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such Series; and
in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such Series, then to the payment
of such principal and interest or yield to maturity, without preference or
priority of principal over interest or yield to maturity or of interest or
yield to maturity over principal, or of any installment of interest over
any other installment of interest, or of any Security of such Series over
any other Security of such Series, ratably to the aggregate of such
principal and accrued and unpaid interest; and
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FOURTH: To the payment of the remainder, if any, to the Issuer, the
Guarantor or any other person lawfully entitled thereto.
Section 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Issuer, the Guarantor and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No Holder of any
Security of any Series or Holder of any Coupon shall have any right by virtue or
by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount of
the Securities of such Series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity, as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 5.9; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security and by a Holder of each Coupon appertaining thereto with every
other taker and Holder of a Security or Holder of any Coupon appertaining
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thereto and the Trustee, that no one or more Holders of Securities of any Series
or one or more Holders of any Coupons appertaining thereto shall have any right
in any manner whatever, by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holder of
Securities or any other Holders of such Coupons, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the applicable Series
and all the Holders of Coupons appertaining thereto. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any provision in this Indenture and any provision of any
Security or Coupon, the right of any Holder of any Security and the right of any
Holder of any Coupon appertaining thereto to receive payment of the principal of
and interest on such Security on or after the respective due dates expressed in
such Security, or to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 5.6 and Section 2.9, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.6, every power and remedy given by this Indenture or by law to the
Trustee, to the Securityholders or to the Holder of any Coupon appertaining
thereto may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee, the Securityholders or Holders of any Coupon.
Section 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each
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Series affected (with each Series treated as a separate class) at the time
Outstanding 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 by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture and
provided further that (subject to the provisions of Section 6.1) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series or of the Holders of any
Coupons appertaining thereto so affected not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any Series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities then Outstanding affected thereby (each Series treated as a separate
class) may waive any such default or Event of Default and its consequences
except a default in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security affected.
In the case of any such waiver, the Issuer, the Guarantor, the Trustee, the
Holders of the Securities of such Series and the Holder of any Coupon
appertaining thereto shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
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Section 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall transmit to the Securityholders of any
Series notice in the manner and to the extent provided in Section 11.4, of all
defaults which have occurred with respect to such Series, such notice to be
transmitted within 90 days after the occurrence thereof, unless such defaults
shall have been cured before the giving of such notice (the term "default" or
"defaults" for the purposes of this Section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of or interest on any of the Securities of such
Series or any default in the payment of any sinking fund installment or
analogous obligation in respect of any of the 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 trustees or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Securityholders of
such Series.
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security and each
Holder of any Coupon, 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
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any Series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; Prior to Default;
During Default. With respect to the Holders of any Series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular Series and after the curing or waiving
of all Events
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of Default which may have occurred with respect to such Series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a
Series has occurred (which has not been cured or waived) of which a Responsible
Officer has actual knowledge, 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.
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
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any Series and after the curing or waiving of all such Events
of Default with respect to such Series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any Series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, 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) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) 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 pursuant to Section 5.9 relating to the time, method and
place of
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conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Section 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or any assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
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(f) prior to the occurrence of any Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing to
do so by the Holders of not less than a majority in aggregate principal
amount of the Securities of all Series affected then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or the Guarantor or, if paid
by the Trustee or any predecessor Trustee, shall be repaid by the Issuer or
the Guarantor upon demand; 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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee's certificate of authentication, shall be taken
as the statements of the Issuer and the Guarantor, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities or the Guarantees. The Trustee shall not be accountable for the use
or application by the Issuer of any of the Securities or of the proceeds
thereof.
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee, any Paying Agent, Security registrar, or any agent of the Issuer, the
Guarantor or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons with the same rights it would have
if it were not the Trustee or such agent and, subject to Sections 6.8 and 6.13,
if operative, may otherwise deal with the Issuer and the Guarantor and receive,
collect, hold and retain collections from the Issuer or the Guarantor with the
same rights it would have if it were not the Trustee or such agent.
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Section 6.5 Moneys Held by Trustee. Subject to the provisions of Section
10.7 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer,
the Guarantor or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. Each of the Issuer and the Guarantor covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and to pay or reimburse the
Trustee and each predecessor 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 counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
Each of the Issuer and the Guarantor also covenants to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against or investigating any claim of liability
in the premises. The obligations of the Issuer and the Guarantor under this
Section to compensate and indemnify the Trustee and each predecessor Trustee and
to pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or the
Holders of particular Coupons, and the Securities are hereby subordinated to
such senior claim. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1 or in connection
with Article 5 hereof, the expenses (including the reasonable fees and expenses
of its counsel) and the compensation for its service in connection therewith are
intended to constitute expenses of administration under any bankruptcy law.
Section 6.7 Right of Trustee to Rely on Officer's Certificate, etc. Subject
to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or
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established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer's
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it or under the provisions
of this Indenture upon the faith thereof.
Section 6.8 Disqualification of Trustee; Conflicting Interests. If the
Trustee has or shall acquire any conflicting interest, as defined in the Trust
Indenture Act, then, within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in the Trust Indenture Act)
to which such conflicting interest relates has not been cured or waived or
otherwise eliminated before the end of such 90-day period, the Trustee shall
either eliminate such conflicting interest or resign in the manner and with the
effect specified in the Trust Indenture Act and this Indenture.
Section 6.9 Persons Eligible for Appointment as Trustee. The Trustee for
each Series of Securities hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States or of any State
or the District of Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal, State or
District of Columbia authority. Such corporation shall have its principal place
of business in the United States, if there be such a corporation in such
location willing to act upon reasonable and customary terms and conditions. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid 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. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
Section 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all Series of Securities by giving written
notice of resignation to the Issuer and the Guarantor and by mailing notice
thereof to the Holders in the manner and to the extent provided in Section 11.4.
Upon receiving such notice of resignation, the Issuer and the Guarantor shall
promptly appoint a successor trustee
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or trustees with respect to the applicable Series by written instrument in
duplicate, executed by authority of the Board of Directors of the Issuer and the
Guarantor, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any Series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
Series for at least six months may, subject to the provisions of Section 5.12,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.8 with respect to any Series of Securities after written request therefor
by the Issuer, the Guarantor or by any Securityholder who has been a bona
fide Holder of a Security or Securities of such Series for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer, the Guarantor or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any
Series of the Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator 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, the Issuer or the Guarantor may remove the Trustee with
respect to the applicable Series of Securities and appoint a successor trustee
for such Series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer or the Guarantor, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 5.12, any Securityholder who
has been a bona fide Holder of a Security or Securities of such Series for at
least six months may on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee with respect to such Series.
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Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each Series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such Series and appoint a successor
trustee with respect to the Securities of such Series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer and
the Guarantor the evidence provided for in Section 7.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any Series
and any appointment of a successor trustee with respect to such Series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and the Guarantor and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
Series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such Series of its predecessor hereunder, with like
effect as if originally named as trustee for such Series hereunder; but,
nevertheless, on the written request of the Issuer, the Guarantor or of the
successor trustee, upon payment of its charges then unpaid, the trustee ceasing
to act shall, subject to Section 10.4, pay over to the successor trustee all
moneys at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
and the Guarantor shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) Series, the Issuer, the Guarantor, the predecessor Trustee
and each successor trustee with respect to the Securities of any applicable
Series shall execute and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
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predecessor Trustee with respect to the Securities of any Series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and 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 under separate indentures.
No successor trustee with respect to any Series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer and the Guarantor shall give notice in the manner and
to the extent provided in Section 11.4 to the Holders of Securities of any
Series for which such successor trustee is acting as trustee at their last
addresses as they shall appear in the Security register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Issuer and the Guarantor fail to mail such
notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Issuer and the Guarantor.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business
of Trustee. 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 the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided that such corporation shall
be qualified under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any Series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any Series shall not have been
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authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor Trustee hereunder or in the name of the
successor Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities of such Series or in this Indenture
provided that the certificate of the Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities of any Series in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer and the
Guarantor. (a) Subject to the provisions of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Issuer or the Guarantor within three months prior to a default, as defined
in subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Securities, the Holders of Coupons and the holders of other indenture securities
(as defined in this section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three month period and valid as
against the Issuer or the Guarantor and its other creditors, except any
such reduction resulting from the receipt or disposition of any property
described in subsection (a)(2) of this Section, or from the exercise of any
right of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Issuer or the Guarantor upon
the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Issuer and the
Guarantor and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Issuer or the
Guarantor) who is liable thereon, (ii) the proceeds of the bona fide
sale of any such claim by
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the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Issuer or the Guarantor in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in such paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Securityholders, the Holders of Coupons and the holders of other
indenture securities in such manner that the Trustee, such Securityholders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Issuer or the Guarantor in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or applicable
State law, the same percentage of their respective claims, figured before
crediting to the claim of
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the Trustee anything on account of the receipt by it from the Issuer or the
Guarantor of the funds and property in such special account and before crediting
to the respective claims of the Trustee, such Securityholders and the holders of
other indenture securities, dividends on claims filed against the Issuer or the
Guarantor in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, such Securityholders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and the property held in such special account and the proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
three month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three month period, it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
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(b) There shall be excluded from the operation of this Section a creditor
relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the Securityholders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(3)
below;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Issuer or the
Guarantor; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c)(4) of
this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment in full
of the principal of or interest upon any of the Securities or upon the
other indenture securities when and as such principal or interest becomes
due and payable;
(2) the term "other indenture securities" shall mean securities upon
which the Issuer or the Guarantor is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of
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this Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) the term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Issuer or the Guarantor for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Issuer or the Guarantor arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Issuer" shall mean any obligor upon the Securities; and
(6) the term "Guarantor" shall mean any obligor upon the Guarantees.
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
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 original issue
or upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 2.9, 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 or any other action in
connection therewith, 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 and other action taken on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Issuer and the Guarantor.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuer and the Guarantor. 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 Issuer and the Guarantor.
Upon receiving such a notice of resignation or upon such a termination, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Issuer and the Guarantor and shall give notice of such appointment to all
Holders of Securities in the manner provided in Section 11.4. 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
the effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless acceptable to the Issuer and the
Guarantor.
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 6.6.
If an appointment with respect to one or more Series of Securities 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
alternative certificate of authentication in the following form:
"This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
--------------------------,
As Trustee
By:
------------------------------
As Authenticating Agent
By:
------------------------------
Authorized Officer
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all Series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or
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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. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee, the Issuer and the Guarantor, if made in the manner provided in this
Article.
(b) The ownership of Registered Securities shall be proved by the Security
register.
(c) The amount of Unregistered Securities held by any Person executing any
instrument or writing as a Securityholder, the numbers of such Unregistered
Securities, and the date of his holding the same may be proved by the production
of such Securities or by a certificate executed by any trust company, bank,
broker or member of a national securities exchange (wherever situated), as
depositary, if such certificate is in form satisfactory to the Trustee, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Unregistered Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person
executing such instrument or writing as a Securityholder, if such certificate or
affidavit is in form satisfactory to the Trustee. The Trustee, the Issuer and
the Guarantor may assume that such ownership of any Unregistered Security
continues until (i) another certificate or affidavit bearing a later date issued
in respect of the same Unregistered Security is produced, or (ii) such
Unregistered Security is produced by some other person, or (iii) such
Unregistered Security is surrendered in exchange for a Registered Security, or
(iv) such Unregistered Security has been cancelled in accordance with Section
2.10.
Section 7.2 Proof of Execution of Instruments. Subject to Sections 6.1
and 6.2, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
Section 7.3 Holders to Be Treated as Owners. The Issuer, the Guarantor,
the Trustee and any Agent of the Issuer, the Guarantor or the Trustee may deem
and treat the Person in whose name any Security shall be registered upon the
Security register for such Series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and interest on such Security and for all
other purposes; and neither the Issuer, the Guarantor nor the Trustee nor any
Agent of the Issuer, the
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Guarantor or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
Section 7.4 Securities Owned by Issuer or Guarantor Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all Series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer, the Guarantor or any other obligor on the Securities with
respect to which such determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, the Guarantor or any other obligor on the Securities
with respect to which such determination is being made shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee knows are 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 Issuer, the
Guarantor or any other obligor upon the Securities or any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, the Guarantor or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Issuer and the Guarantor shall
each furnish to the Trustee promptly an Officer's Certificate listing and
identifying all Securities, if any, known by the Issuer and the Guarantor to be
owned or held by or for the account of any of the above-described persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officer's Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
Section 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in
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this Article, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all Series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Guarantor, the Trustee and the Holders
of all the Securities affected by such action.
Section 7.6 Record Date for Determination of Holders Entitled to Vote.
The Issuer or the Guarantor may, in the circumstances permitted by the Trust
Indenture Act, set a record date for the purpose of determining the
Securityholders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Securityholders. If not set by
the Issuer or the Guarantor prior to the first solicitation of a Securityholder
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 4.1) prior to such first solicitation or
vote, as the case may be. With regard to any record date, only the Holders on
such date (or their duly appointed proxies) shall be entitled to give or take,
or vote on, the relevant action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer and the Guarantor each, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
(b) to evidence the succession of another corporation to the Issuer
or the Guarantor, or successive successions, and the assumption by the
successor corporation of the covenants,
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agreements and obligations of the Issuer or the Guarantor pursuant to
Article Nine;
(c) to add to the covenants of the Issuer or the Guarantor such
further covenants, restrictions, conditions or provisions as their
respective Boards of Directors and the Trustee shall consider to be for the
protection of the Holders of Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an Event of
Default or may limit the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such Series to waive such
an Event of Default;
(d) to evidence the assumption by the Guarantor of all of the rights
and obligations of the Issuer hereunder with respect to a Series of
Securities and under the Securities of such Series and the release of the
Issuer from its liabilities hereunder and under such Securities as obligor
on the Securities of such Series, all as provided in Section 2.15 hereof;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Boards of Directors of the Issuer and the Guarantor may
deem necessary or desirable and which shall not materially and adversely
affect the interests of the Holders of the Securities or the Holders of any
Coupons;
(f) to establish the form or terms of Securities of any Series as
permitted by Sections 2.1 and 2.3; or
(g) 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
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hereunder by more than the one trustee, pursuant to the requirements of
Section 6.11.
The Trustee is hereby authorized to join with the Issuer and the Guarantor
in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 8.2.
Section 8.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of more than
50% of the aggregate principal amount of the Securities at the time Outstanding
of all Series affected by such supplemental indenture (treated as one class),
the Issuer and the Guarantor, when authorized by Board Resolutions, and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
Series and any related Coupons; provided, that no such supplemental indenture
shall (a) extend the final maturity of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or reduce the
amount of principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 5.1 or
the amount provable in bankruptcy pursuant to Section 5.2, or impair or affect
the right of any Securityholder to institute suit for payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any Series, the consent
of the Holders of which is required for any such supplemental indenture or (c)
except as provided in Section 8.1(e), change the substantive provisions of the
Guarantees, without the consent of the Holders of each Security so affected.
Upon the request of the Issuer and the Guarantor, accompanied by a copy of
the Board Resolution of each of the Issuer and the
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Guarantor authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer and the Guarantor in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Issuer and the Guarantor shall give notice in the manner and to the
extent provided in Section 11.4 to the Holders of Securities of each Series
affected thereby at their addresses as they shall appear on the registry books
of the Issuers, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer or the Guarantor to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders
of Securities of each Series and Holders of Coupons affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate from
each of the Issuer and the Guarantor and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article Eight
complies with the applicable provisions of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any Series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear, upon
the direction of the
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Issuer and the Guarantor, a notation in form satisfactory to the Trustee for
such Series as to any matter provided for by such supplemental indenture or as
to any action taken at any such meeting. If the Issuer, the Guarantor or the
Trustee shall so determine, new Securities of any Series so modified as to
conform, in the opinion of the Trustee and the Boards of Directors of the Issuer
and the Guarantor, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer and the Guarantor,
authenticated by the Trustee and delivered in exchange for the Securities of
such Series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Guarantor May Consolidate, etc., on Certain Terms. The
Guarantor covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless (i) the Guarantor shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Guarantor (if other than the Guarantor)
shall be a corporation organized under the laws of the United States or any
State thereof and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Guarantor by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation, and (ii) the Guarantor or such successor
corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any such covenant or condition.
Section 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Guarantor, with the same effect as if it had been named
herein. Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Guarantor prior to such succession any or
all of the Guarantees issuable hereunder which theretofore shall not have been
signed by the Guarantor and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Guarantor and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities with the Guarantees of the
Guarantor which previously shall have been
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signed and delivered by the officers of the Guarantor to the Trustee, and any
Guarantees which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the Guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Guarantees theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Guarantees had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities and
the Guarantees thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance the Guarantor or any successor
corporation which shall theretofore have become such in the manner described in
this Article shall be discharged from all obligations and covenants under this
Indenture and the Guarantees and may be liquidated and dissolved.
Section 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE TEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 10.1 Option to Effect Defeasance or Covenant Defeasance. The
Issuer or the Guarantor may elect, at their respective option at any time, to
have Section 10.2 or Section 10.3 applied to any Securities or any Series of
Securities, as the case may be, in accordance with and upon compliance with the
conditions set forth below in this Article. Notwithstanding the previous
sentence, if any Securities or any Series of Securities have been specifically
designated pursuant to Section 2.3 as not being defeasible pursuant to either or
both of Section 10.2 or Section 10.3 or as being defeasible pursuant to either
or both of Section 10.2 or Section 10.3 only in accordance with requirements
provided pursuant to Section 2.3, then the Issuer or the Guarantor either, as
the case may be, (i) may not elect to have either or both of Section 10.2 or
Section 10.3 applied to such Securities or Series of Securities (as specified
with respect to such Securities or Series of Securities pursuant to Section
2.3), or (ii) may elect to have either or both of Section 10.2 or Section 10.3
applied to such Securities or Series of Securities (as specified with respect to
such Securities or Series of Securities pursuant to Section 2.3) in
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accordance with any applicable requirements provided pursuant to Section 2.3
with respect to such Securities or Series of Securities and upon compliance with
the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 2.3 for such Securities.
Section 10.2 Defeasance and Discharge. Upon the Issuer's or the
Guarantor's exercise of its respective option, if any, to have this section
applied to any Securities or any Series of Securities, as the case may be, the
Issuer and the Guarantor shall be deemed to have been discharged from their
respective obligations with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 10.4 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and that the Issuer and the
Guarantor shall be deemed to have satisfied all their other respective
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Issuer and the Guarantor,
shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 10.4 and as more fully set forth in such
Section, payments in respect of the principal of and interest on such Securities
when payments are due, (2) the obligations of the Company and the Guarantor with
respect to such Securities under Sections 2.8, 2.9, 2.11, 3.2 and 3.4, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the Issuer and the
Guarantor may each exercise its respective option, if any, to have this Section
applied to any Securities notwithstanding the prior exercise of its respective
option, if any, to have Section 10.3 applied to such Securities.
Section 10.3 Covenant Defeasance. Upon the exercise of the Issuer or the
Guarantor of their respective option, if any, to have this Section applied to
any Securities or any Series of Securities, as the case may be, (1) the Issuer
and the Guarantor shall be released from their respective obligations under
Sections 3.5, 3.6, 3.9, 3.10, and 4.3(d), and any covenants provided pursuant to
Sections 2.3(20), 8.1(c) or 8.1(f) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Section 5.1(d) (with
respect to any of Sections 3.5, 3.6, 3.9, 3.10, and 4.3(d), and any such
covenants provided pursuant to Sections 2.3(20), 8.1(c) or 8.1(f)) and 5.1(g)
shall be deemed not to be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 10.4 are satisfied
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(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Issuer and the
Guarantor may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 5.1(d)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 10.4 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of Section 10.2 or Section
10.3 to any Securities or any Series of Securities as the case may be:
(1) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which satisfies
the requirements contemplated by Section 6.9 who shall agree to comply with
the provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and interest on
such Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligations" means (x) any security which is (i) a direct
obligation of the United States for the payment of which the full faith and
credit of the United States is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government
Obligation which is specified in clause (x) above and held by such bank for
the account of the holder of such depositary receipt, or with respect to
any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that
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(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the event of an election to have Section 10.2 apply to any
Securities or any Series of Securities, as the case may be, the Issuer or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Issuer or the Guarantor has received from, or there
has been published by the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that, and
based thereon such Opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 10.3 apply to any
Securities or any Series of Securities, as the case may be, the Issuer or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will
be subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Issuer shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same Series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 5.1(f) and
(g), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
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(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of the Trust
Indenture Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Issuer or the Guarantor is a party or by which
the Issuer or the Guarantor is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be registered under such Act or exempt from registration
thereunder.
(9) The Issuer and the Guarantor shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance
have been complied with.
Section 10.5. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions. Subject to the provisions of Section 10.7,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 10.6, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 10.4 in respect
of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Issuer and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 10.4 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuer or the Guarantor from time to time upon
Issuer Request or Guarantor Request any
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money or U.S. Government Obligations held by it as provided in Section 10.4 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
Section 10.6. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which the Issuer
and the Guarantor have been discharged or released pursuant to Section 10.2 or
10.3 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to
Section 10.5 with respect to such Securities in accordance with this Article;
provided, however, that if the Issuer or the Guarantor make any payment of
principal of or any premium or interest on any such Security following such
reinstatement of their obligations, the Issuer and the Guarantor shall be
subrogated to the rights, if any, of the Holders of such Securities to receive
such payment from the money so held in trust.
Section 10.7 Return of Unclaimed Moneys Held by Trustee and Paying Agent.
Any moneys deposited with or paid to the Trustee or any Paying Agent for the
payment of the principal of or interest on any Security of any Series or Coupons
and not applied but remaining unclaimed for two years after the date upon which
such principal or interest shall have become due and payable, shall, upon the
written request of the Issuer or the Guarantor and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer or the Guarantor, as appropriate, by the Trustee
for such Series or such Paying Agent, and the Holder of the Security of such
Series or Holders of Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer and the Guarantor for any
payment which such Holder may be entitled to collect, and all liability of the
Trustee or any Paying Agent with respect to such moneys shall thereupon cease.
Section 10.8 Satisfaction and Discharge of Indenture. Upon the written
request signed on behalf of the Issuer by any of its directors or officers and
delivered to the Trustee, this Indenture shall 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 Issuer, 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 2.9 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer or the Guarantor and thereafter
repaid to the Issuer or the Guarantor or discharged from such trust, as
provided in Section 10.4) 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
Issuer or the Guarantor,
and the Issuer or the Guarantor, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Issuer or the Guarantor; and
(3) the Issuer or the Guarantor has delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer and the Guarantor to the
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Trustee under Section 6.6, the obligations of the Trustee to any Authenticating
Agent under Section 6.14 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 6.5 and Section 10.7 shall survive.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers and Directors of Issuer
and Guarantor Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security
or Coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or against any past,
present or future stockholder, officer or director, as such, of the Issuer, the
Guarantor or of any successor, either directly or through the Issuer, the
Guarantor or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities or Coupons,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto, any Paying Agent and their successors hereunder and the
Holders of the Securities and Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities.
Section 11.3 Successors and Assigns of Issuer and Guarantor Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Issuer or the Guarantor shall bind
their respective successors and assigns, whether so expressed or not.
Section 11.4 Notices and Demands on Issuer, Guarantor, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee, by the Holders of
Securities, or by the Holders of Coupons to or on the Issuer or the Guarantor
may be given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed (until another
address of the Issuer or the Guarantor is filed by the Issuer or the Guarantor
with the Trustee) to (i) the Issuer c/o
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Tupperware Corporation, P.O. Box 2353, Orlando, Florida 32802 Attention:
_______________; and (ii) the Guarantor at P.O. Box 2353, Orlando, Florida 32802
Attention: _________________, except that any notices required or permitted to
be given under Section 5.1 hereof shall be given or served by registered or
certified mail only. Any notice, direction, request or demand by the Issuer,
the Guarantor or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made at the
Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event, (1) if
any of the Securities affected by such event are Registered Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to such Registered
Holders as their names and addresses appear in the Security register within the
time prescribed and (2) if any of the Securities affected by such event are
Unregistered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if published once in a newspaper of general
circulation in [NEW YORK, NEW YORK] and in such other city or cities as may be
specified in such Securities within the time prescribed. 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. 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, and any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular mail
service, or by reason of any other cause, it shall be impracticable to mail
notice to the Issuer, the Guarantor and Securityholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
In case it shall be impracticable to publish notice to Securityholders when
such notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
Section 11.5 Officer's Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand
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by the Issuer or the Guarantor to the Trustee to take any action under any of
the provisions of this Indenture, the Issuer or the Guarantor, as the case may
be, shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture (other than certificates provided pursuant to Section 4.3(d))
shall include (a) a statement that the person making such certificate or opinion
has read such covenant or condition, (b) 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, (c) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with and (d) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of the Issuer or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or Opinion of Counsel may be
based, insofar as it relates to factual matters, information with respect to
which is in the possession of the Issuer or the Guarantor, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer or the Guarantor, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer, the
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer or the Guarantor, unless such
officer or
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counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of interest on or principal of the Securities of any Series or
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption or repayment, and no interest shall
accrue for the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by any of Sections 310 through 317 of the Trust
Indenture Act, by the operation of Section 318(c) thereof, such imposed duties
shall control, except as, and to the extent, expressly excluded from this
Indenture, as permitted by the Trust Indenture Act. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
Section 11.8 New York Law to Govern; Submission to Jurisdiction. This
Indenture and each Security shall be deemed to be a contract under the laws of
the State of New York, and for all purposes shall be construed in accordance
with the laws of such State.
The Issuer has irrevocably submitted to the non-exclusive jurisdiction of
any New York State or United States federal court sitting in The City and County
of New York over any suit, action or proceeding arising out of or relating to
this Indenture or the Securities of any Series. The Issuer has appointed
______________________________ as its agent upon whom process may be served in
any such suit, action or proceeding, with a copy to the Issuer c/o Tupperware
Corporation, P.O. Box 2353, Orlando, Florida 32802 Attention:
____________________; provided that failure to deliver any such copy to the
Issuer shall not affect the validity or effectiveness of any such service of
process.
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Section 11.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 11.10 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 11.11 Determination of Principal Amount. In determining whether
the Holders of the requisite principal amount of outstanding Securities of any
Series have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, or whether sufficient funds are available for redemption or
for any other purpose, the principal amount of an Original Issue Discount
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1 and the principal amount of any Securities denominated
in a Foreign Currency that shall be deemed to be outstanding for such purposes
shall be determined by converting the Foreign Currency or the specified amount
of each Component Currency into Dollars at the Market Exchange Rate as of the
date of such determination.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any Series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
Section 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series to be redeemed as a whole
or in part at the option of the Issuer shall be given by giving notice of such
redemption as provided in Section 11.4, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of Securities of
such Series. Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a Series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security of such Series.
The notice of redemption to each such Holder shall specify the date fixed
for redemption, the redemption price, the place or
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places of payment, that payment will be made upon presentation and surrender of
such Securities, and that, unless otherwise specified in such notice, Coupon
Securities, if any, surrendered for payment must be accompanied by all Coupons
maturing subsequent to the redemption date, failing which the amount of any such
missing Coupon or Coupons will be deducted from the sum due for payment, that
such redemption is pursuant to the mandatory or optional sinking fund, or both,
if such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue and that,
if less than all of the Outstanding Securities of a Series are to be redeemed,
the identification and principal amount of the Securities to be redeemed. In
case any Security of a Series is to be redeemed in part, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such Series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any Series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more Paying Agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Securities
of such Series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. If less than
all the Outstanding Securities of a Series are to be redeemed, the Issuer will
deliver to the Trustee at least 60 days prior to the date fixed for redemption
an Officer's Certificate stating the aggregate principal amount of Securities to
be redeemed.
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If less than all the Securities of a Series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such Series to be redeemed in whole or in part. Securities may be redeemed
in part in multiples equal to the minimum authorized denomination for Securities
of such Series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such Series selected for redemption and,
in the case of any Securities of such Series 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 of any Series shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Security which has been or is to be redeemed.
Section 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 6.5 and 10.7, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest on Registered Securities becoming due on the date fixed for
redemption shall be payable to the Holders of such Securities registered as such
on the relevant record date subject to the terms and provisions of Section 2.7
hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest borne
by the Security.
Upon presentation of any Security redeemed in part only and any Coupons
appertaining thereto, the Issuer shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Issuer, a new Security or
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Securities and any Coupons appertaining thereto, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Issuer and delivered to
the Trustee at least 60 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Issuer, (b) the Guarantor or (c) an
entity specifically identified in such written statement directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or the Guarantor.
Section 12.5 Mandatory and Optional Sinking Funds. 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". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any Series, the Issuer will deliver to the Trustee an Officer's Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such Series, (b) stating that none of the Securities of such Series has
theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such
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Series have occurred (which have not been waived or cured) and are continuing,
(d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such Series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date and (e) specifying
such sinking fund payment date. Any Securities of such Series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such written statement (or reasonably promptly thereafter if
acceptable to the Trustee). Such written statement shall be irrevocable and upon
its receipt by the Trustee the Issuer shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or before
the next succeeding sinking fund payment date. Failure of the Issuer, on or
before any such sixtieth day, to deliver such written statement and Securities
specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Issuer (i)
that the mandatory sinking fund payment for such Series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such Series in respect thereof and
(ii) that the Issuer will make no optional sinking fund payment with respect to
such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Issuer shall so request) with respect to the Securities
of any particular Series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such Series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 12.2, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such Series to absorb said cash, as nearly as may be possible, and
shall (if requested in writing by the Issuer) inform the Issuer of the serial
numbers of the Securities of such Series (or portions thereof) so selected.
Securities of any Series which are identified by registration and certificate
number in an Officer's Certificate at least 60 days prior to the sinking fund
payment date as being beneficially owned by, and not pledged or hypothecated by,
the Issuer, the Guarantor or an entity directly or indirectly controlling or
controlled by or under direct or indirect common
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control with the Issuer or the Guarantor shall be excluded from Securities of
such Series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so notify the Trustee
in writing) shall cause notice of redemption of the Securities of such Series to
be given in substantially the manner provided in Section 12.2 (and with the
effect provided in Section 12.3) for the redemption of Securities of such Series
in part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such Series shall be
added to the next cash sinking fund payment for such Series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular Series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such Series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such Series at maturity.
On or before each sinking fund payment date, the Issuer or the Guarantor
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
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ARTICLE THIRTEEN
PAYMENT OF ADDITIONAL AMOUNTS
Section 13.1 Applicability of Article. The provisions of this Article
Thirteen shall apply to each series of Securities issued under this Indenture
unless otherwise specified pursuant to Section 2.3.
Section 13.2 Payment of Additional Amounts. If any deduction or withholding
for any present or future taxes, assessments or other governmental charges of
The Netherlands or any political subdivision or taxing authority thereof or
therein, shall at any time be required in respect of any amounts to be paid by
the Issuer, the Guarantor or any paying agent under any series of Securities to
which this Article Thirteen is applicable, the Issuer will pay as additional
interest such additional amounts as may be necessary in order that the net
amounts paid to the Holder of any Security pursuant to the terms of such
Security, after such deduction or withholding, will be not less than the amounts
specified in such Security to be then due and payable; provided, however, that
the Issuer shall not be required to make any payment of additional amounts for
or on account of:
(a) any tax, assessment or other governmental charge which would not
have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such
Holder, if such Holder is an estate, trust, partnership or corporation) and
The Netherlands or any political subdivision or territory or possession of
The Netherlands or area subject to its jurisdiction, including, without
limitation, such Holder (or such fiduciary, settlor, beneficiary, member,
shareholder or possessor) being or having been a citizen or resident or
treated as a resident thereof, being or having been present or engaged in
trade or business therein or having or having had a permanent establishment
therein or (ii) the presentation of such Security (where presentation is
required) for payment on a date more than 20 days after the date on which
such payment became due and payable or the date on which payment thereof
was duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments of (or in respect of) principal
of or interest on such Security;
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(d) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner with a request of the Issuer addressed to the Holder to
provide information concerning the nationality, residence or identity of
the Holder or beneficial owner of such Security, and to make such
declaration or other similar claim or reporting requirement, which is
required by a statute, treaty or regulation of The Netherlands as a
precondition to exemption from all or part of such tax, assessment or other
governmental charge; or
(e) any combination of items (a), (b), (c) and (d) above;
nor will additional amounts be paid with respect to any payment of the
principal of or interest on any such Security to any such Holder who is a
fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws of The
Netherlands (or any political subdivision or taxing authority of or in The
Netherlands) to be included in the income for tax purposes of a beneficiary
or settlor with respect to such fiduciary or a member of such partnership
or a beneficial owner who would not have been entitled to such additional
amounts had it been the Holder of such Security.
The Securities are subject in all cases to any tax, fiscal or other law or
regulation or administrative or judicial interpretation applicable thereto.
Except as specifically provided in this Article Thirteen or elsewhere in this
Indenture, the Issuer shall not be required to pay additional amounts with
respect to any taxes, assessments or governmental charges imposed by any
government or a political subdivision or taxing authority thereof or therein.
Section 13.3 Optional Tax Redemption. If as a result of any change in, or
amendment to, the laws (or any regulations or rulings promulgated thereunder) of
The Netherlands (or any political subdivision or taxing authority thereof or
therein), or any change in the official application or interpretation of such
laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which The Netherlands is
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a party, which change, execution or amendment becomes effective on or after the
original issue date of the Securities of a series to which this Article Thirteen
is applicable, the Issuer or the Guarantor has been or will be required to pay
additional amounts in accordance with Section 13.02, the Issuer or the Guarantor
may, at its option, redeem the Securities of such series, as a whole but not in
part, at a redemption price equal to 100% of their principal amount, together
with interest accrued thereon to the date fixed for redemption. Redemption
pursuant to this Section 13.03 shall be made in accordance with the provisions
of Article Twelve.
[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereto affixed and
attested, all as of the day and year first above written.
ATTEST: TUPPERWARE FINANCE COMPANY B.V.
By By
--------------------------- ----------------------------------
Name: Name:
Title: Title:
[CORPORATE SEAL]
ATTEST: TUPPERWARE CORPORATION
By By
--------------------------- ----------------------------------
Name: Name:
Title: Title:
[CORPORATE SEAL]
ATTEST:
----------------------------------
as Trustee
By By
--------------------------- ----------------------------------
Name: Name:
Title: Title:
[CORPORATE SEAL]
93
<PAGE>
STATE OF __________ )
) SS:
COUNTY OF _________ )
On this ____ day of ________, 1996, before me personally came
_________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at ___________________ and that he is a
_________________ of Tupperware Finance Company B.V., one of the corporations
described in and which executed the above instrument; that he knows the
corporate 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.
[NOTARIAL SEAL]
-------------------------------
Notary Public
STATE OF __________ )
) SS:
COUNTY OF _________ )
On this ____ day of ________, 1996, before me personally came
_________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at ___________________ and that he is a
_________________ of Tupperware Corporation, one of the corporations described
in and which executed the above instrument; that he knows the corporate 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.
[NOTARIAL SEAL]
-------------------------------
Notary Public
94
<PAGE>
STATE OF _________ )
) SS:
COUNTY OF ________ )
On this ____ day of __________, 1996, before me personally came
________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at _______________; that he is a
_________________ of ___________________, one of the corporations described in
and which executed the above instrument; that he knows the corporate 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.
[NOTARIAL SEAL]
-------------------------------
Notary Public
95
<PAGE>
Exhibit A
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
TUPPERWARE FINANCE COMPANY B.V.
[Description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States Person or by persons who have
purchased such Securities for offer to resell or resale to any U.S. Persons or
any person in the United States or, if a beneficial interest in the Securities
is being acquired by or on behalf of a United States Person, that such person is
a financial institution within the meaning of Section 1.1.65-12(c)(1)(v) of the
United States Treasury regulations which agrees to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and which is not purchasing for offer to
resell or resale inside the United States. If the undersigned is a dealer, the
undersigned agrees to obtain a similar certificate from each person entitled to
delivery of any of the above-captioned Securities in bearer form purchased from
it; provided, however, that if the undersigned has actual knowledge that the
information contained in such a certificate is false, the undersigned will not
deliver a Security in temporary or definitive bearer form to the person who
signed such certificate notwithstanding the delivery of such certificate to the
undersigned.
As used herein, "United States Person" means any citizen or resident of the
United States of America (including the States and the District of Columbia) and
its territories, its possessions and all areas subject to its jurisdiction
("United States"), including any corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof and any estate or trust which is subject to United States
federal income taxation regardless of the source of its income.
We undertake to advise you by telex if the above statement as to beneficial
ownership is not correct on the date of delivery of the above-captioned
Securities in bearer form as to all of such Securities.
<PAGE>
We understand that this certificate is required in connection with United
States securities and tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered by
this certificate.
Dated: ____________, 19__
[To be dated on or after
___________, 19__ (the date
determined pursuant to the
Indenture)]
[Name of person entitled to
receive Security]
By: _________________________
2
<PAGE>
Exhibit 4(b)
[FORM OF FACE OF SECURITY]
No. $
TUPPERWARE FINANCE COMPANY B.V.
% [ ] Due ________________
TUPPERWARE FINANCE COMPANY B.V., a corporation organized under the laws of
The Netherlands (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 ________________ on ______________, in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on each
[ ] and [ ] and at maturity, on said principal sum, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, at the rate per annum
specified in the title of this [ ], from [ ] or [ ], as the case
may be, next preceding the date of this Security to which interest has been
paid, unless the date hereof is a date to which interest has been paid, in
which case from the date of this Security, or unless no interest has been paid
on this Security, in which case from [ ], [ ], until payment of said
principal sum has been made or duly provided for. Payments of such principal
and interest shall be made at the office or agency of the Company in Chicago,
Illinois, which, subject to the right of the Company to vary or terminate the
appointment of such agency, shall initially be at the principal office of The
First National Bank of Chicago, One First National Plaza, Chicago, Illinois
60670, subject to the right of the Company to vary or terminate the appointment
of any such agency or to appoint additional and other such agencies; 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 such address shall
appear on the Security register. Notwithstanding the foregoing, if the date
hereof is after the [ ] day of [ ] or [ ], as the case may be, and
before the following [ ] or [ ], this Security shall bear interest from
such [ ] or [ ]; provided, that if the Company shall default in the
payment of interest due on such [ ] or [ ], then this Security shall
bear interest from the next preceding [ ] or [ ], to which interest has
been paid or, if no interest has been paid on this Security from [ ]. The
interest payable on any [ ] or [ ], will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Security is registered at the close of business on
the [ ] or [ ], as the case may be, next preceding such [ ] or
[ ], and the interest payable at maturity will be payable
<PAGE>
to the person to whom the principal hereof shall be payable.
Reference is made to the further provisions of this Security set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TUPPERWARE FINANCE COMPANY B.V. has caused this
instrument to be signed by facsimile by its duly authorized representative.
Dated: TUPPERWARE FINANCE COMPANY B.V.
By_____________________________
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By: ______________________________
-3-
<PAGE>
[Form of Guarantee]
FOR VALUE RECEIVED, Tupperware Corporation, a Delaware corporation (the
"Guarantor"), hereby unconditionally guarantees to the Holder of the Security
upon which this Guarantee is endorsed the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, or interest on or
additional amounts with respect to said Security, when and as the same shall
become due and payable, whether at maturity, upon redemption or otherwise,
according to the terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on or additional amounts with respect to said
Security is due and payable, whether Tupperware Finance Company B.V. (the
"Company") has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest or
additional amounts, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable, whether at
maturity, upon redemption, or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Security or indebtedness evidenced
thereby, and all demands whatsoever and covenants that this Guarantee will not
be discharged except by complete performance of the obligations contained in
said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the Company's
____% [ ] due ___________ (the "Securities") then outstanding, be
-4-
<PAGE>
entitled to enforce or to receive any payments arising out of or based upon such
right of subrogation until the principal of and interest on all Securities shall
have been paid in full or payment thereof shall have been provided for in
accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal or interest by the Company on the Securities to the Holders
of the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is paid by such Holder to such trustee in bankruptcy, then and
to the extent of such repayment, the obligations of the Guarantor hereunder
shall remain in full force and effect.
The Guarantor hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened prior to the
creation and issuance of this Guarantee and to constitute the same as the legal,
valid and binding obligation of the Guarantor enforceable in accordance with its
terms, have been done and performed and have happened in due and strict
compliance with applicable laws.
This Guarantee shall not be valid or become obligatory for any purpose with
respect to a Security until the certificate of authentication on such Security
shall have been signed by the Trustee (or the Authenticating Agent).
This Guarantee shall be governed by the laws of the State of New York.
All terms used in this Guarantee which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, TUPPERWARE CORPORATION has caused this Guarantee to be
signed in its corporate name by the facsimile signature of one of its officers
thereunto duly authorized and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted or otherwise reproduced hereon.
TUPPERWARE CORPORATION
By: _____________________________
Authorized Officer
-5-
<PAGE>
[Form of Reverse of Security]
TUPPERWARE FINANCE COMPANY B.V.
[Title of Securities]
UNCONDITIONALLY GUARANTEED BY
TUPPERWARE CORPORATION
Section 1. General. This [ ] 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 September __, 1996
(the "Indenture"), between the Company, Tupperware Corporation (the "Guarantor")
and The First National Bank of Chicago, 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 Guarantor, 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 Securities of the
series designated on the face hereof limited in aggregate principal amount to
$____________.
Section 2. Redemption. [The Securities may be redeemed at the option of the
Company as a whole, or from time to time in part, on any date after _______ and
prior to maturity, upon mailing a notice of such redemption not less than 30 nor
more than 60 days prior to the date fixed for redemption to the Holders of
Securities at their last registered addresses, all as further provided in the
Indenture, at the following redemption prices (expressed in percentages of the
principal amount) together in each case with accrued interest to the date fixed
for redemption:
If redeemed during the twelve-month period beginning [ ]:
Year Percentage Year Percentage]
---- ---------- ---- ----------
[In addition, t] [T]he Securities may be redeemed, as a whole but not in
part, at a redemption price equal to 100% of their principal amount, together
with interest thereon to the date fixed for redemption, if, at any time, the
Company or the Guarantor has been or will be required to pay additional amounts
with respect to the Securities pursuant to Section 3 hereof.
Section 3. Payment of Additional Amounts. The Company and the Guarantor
will, subject to certain exceptions and limitations set forth in the Indenture,
pay as additional interest on this Security, such additional amounts as are
necessary in order that
-6-
<PAGE>
the net payment by the Company, the Guarantor or a paying agent of the principal
of and interest on this Security, after deduction for any present or future tax,
assessment or governmental charge of The Netherlands or a political subdivision
or taxing authority thereof or therein, imposed by withholding with respect to
the payment, will not be less than the amount provided herein to be then due and
payable.
[Section 4. Sinking Fund. The Securities are also subject to redemption,
through the operations of the sinking fund as herein provided on _____ and on
each _____ thereafter to and including _____ on notice as set forth above and at
100% of the principal amount thereof (the sinking fund redemption price),
together with accrued interest to the date fixed for redemption.]
As and for a sinking fund for the retirement of the Securities and so long
as any of the Securities remain outstanding and unpaid, the Company will pay to
the Trustee in cash (subject to the right to deliver certain Securities in
credit therefor as provided in the Indenture), on or before _____ and on or
before _____ in each year thereafter to and including _____ an amount sufficient
to redeem $_______ principal amount of the Securities (or such lesser amount
equal to the principal amount then Outstanding) at the sinking fund redemption
price.]
At its option the Company may pay into the sinking fund for the retirement
of Securities, in cash except as provided in the Indenture, on or before _____
and on or before _____ in each year thereafter to and including _____, an amount
sufficient to redeem an additional principal amount of Securities up to but not
to exceed $_____ at the sinking fund redemption price. To the extent that the
right to such optional sinking fund payment is not exercised in any year, it
shall not be cumulative or carried forward to any subsequent year.]
Section 5. Events of Default. 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.
Section 6. Modifications and Waivers; Obligation of the Company Absolute.
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 Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of at least a majority
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 or
-7-
<PAGE>
the Guarantor with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, places and rate, and in the coin or currency, herein
prescribed.
Section 7. Assumption of Obligations by Guarantor. The Guarantor, without
the consent of the Holder hereof, may, or may be required to, assume all of the
obligations of the Company hereunder and under the Indenture with respect to the
Securities in the manner and with the effect provided in the Indenture.
Section 8. Authorized Denominations. The Securities are issuable in
registered form, without coupons, in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture, and subject
to certain limitations therein set forth and to the limitations described below,
if applicable, 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.
Section 9. Registration of Transfer. 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 maintained for that purpose in the City of Chicago, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the securities registrar (which shall initially
be the Trustee, One First National Plaza, Chicago, Illinois 60670 (Attention:
Corporate Trust Department) or at such other address as it may designate as its
principal corporate trust office in the City of Chicago, duly executed by the
Holder hereof or his attorney duly authorized in writing, 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.
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.
-8-
<PAGE>
Section 10. Owners. Prior to due presentment of this Security for
registration of transfer, the Company, the Guarantor, the Trustee and any agent
of the Company, the Guarantor 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 is overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
Section 11. No Recourse Against Certain Persons. No recourse for the
payment of the principal or interest on this Security, or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company or the Guarantor in the
Indenture or any Supplemental Indenture thereto or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, the Guarantor or of any successor corporation of either
of them, either directly or through the Company, the Guarantor or any successor
corporation of either of them, whether by virtue of any constitution, statute or
rule or law or by the enforcement of any assessment or penalty or otherwise, all
such liability being by the acceptance hereof and as a condition of and as part
of the consideration for the issue hereof, expressly waived and released.
Section 12. Defeasance. The Indenture with respect to any series will be
discharged and cancelled except for certain Sections thereof, subject to the
terms of the Indenture, upon compliance with and in accordance with Article Ten
of the Indenture.
Section 13. Governing Law; Jurisdiction. The Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York.
The Company hereby irrevocably submits to the non-exclusive jurisdiction of
any New York State or United States federal court sitting in The City and County
of New York over any suit, action or proceeding arising out of or relating to
this Security. The Company has appointed __________________________ as its agent
upon whom process may be served in any such suit, action or proceeding, with a
copy to the Company c/o Tupperware Corporation, P.O. Box 2353, Orlando, Florida
32802 Attention:_____________; provided that failure to deliver any such copy to
the Company shall not affect the validity or effectiveness of any such service
of process.
Section 14. Defined Terms. All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
-9-
<PAGE>
------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ............Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------
| |
| |
| |
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ________________________________ attorney to transfer said
Security on the books of the Company, with full power of substitution in the
premises.
Dated: _______________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
-10-
<PAGE>
Exhibit 4 (c)
- --------------------------------------------------------------------------------
TUPPERWARE FINANCE COMPANY, B.V.
AND
[WARRANT AGENT]
AS WARRANT AGENT
---------------
WARRANT AGREEMENT -- DEBT SECURITIES
DATED AS OF , 199
----------- -
---------------
- --------------------------------------------------------------------------------
<PAGE>
TUPPERWARE FINANCE COMPANY, B.V.
Form of Debt Warrant Agreement/*/
THIS WARRANT AGREEMENT, dated as of _________, 199_, between
TUPPERWARE FINANCE COMPANY, B.V., a corporation organized under the laws of the
Kingdom of the Netherlands, (the "Company," which term includes any successor
corporation under the Indenture referred to below) and [WARRANT AGENT], as
Warrant Agent (the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "Indenture"),
dated as of ___________, 1996, between the Company and [NBD First Chicago
Corporation], as trustee (the "Trustee"), to be issued in one or more series as
provided in the Indenture; [IF WARRANT SECURITIES ARE NOT UNDER SAME INDENTURE
AS DEBT SECURITIES TO WHICH THEY ARE ATTACHED: and an Indenture (the "[Senior]
[Subordinated] Indenture," the Indenture and the [Senior] [Subordinated]
Indenture being referred to collectively as the "Indentures"), dated as of
____________, 199_, between the Company and _________________, as trustee (the
"[Senior] [Subordinated] Trustee," (the Trustee and the [Senior] [Subordinated]
Trustee being referred to collectively as the "Trustees"), providing for the
issuance from time to time of its [senior] [subordinated] debentures, notes or
other evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities,"
the Debt Securities and the [Senior] [Subordinated] Debt Securities being
referred to collectively as the "Debt Securities"), to be issued in one or more
series as provided in the _____________ Indenture]; and
WHEREAS, the Company proposes to sell [IF WARRANTS ARE SOLD WITH DEBT
SECURITIES: [insert title of Debt Securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant"), representing the right to purchase
[title of Debt Securities purchasable through exercise of Warrants] (the
"Warrant Securities"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being referred to herein as the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
- ----------------
/*/ Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities.
Monetary amounts may be in U.S. dollars, foreign currency or European
Currency Units ("ECU").
1
<PAGE>
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [IF WARRANTS ALONE: Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [IF
OFFERED SECURITIES AND WARRANTS: Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after __________, ____ (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of $_________. [IF OFFERED SECURITIES AND
WARRANTS: Warrant Certificates shall be [initially] issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence __________ Warrants for each [$________ principal amount] [_______
shares] of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in [registered] [bearer] form
substantially in the form set forth in Exhibit A, shall be dated ____________,
199_ and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement or as may be required to comply with any
law, rule or regulation or with any rule or regulation of any stock exchange on
which the Warrants may be listed or to conform to usage. The Warrant
Certificates shall be executed on behalf of the Company by any director or the
Chairman of the Board, the President, any Vice Chairman, any Executive Vice
President and by its Secretary or any Assistant Secretary under its corporate
seal reproduced thereon. Such signatures may be manual or facsimile signatures
of such authorized directors or officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the
<PAGE>
Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly issued hereunder.
If any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such an
officer before the Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company. Any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such an officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean [the bearer of such Warrant Certificate] [any person in whose name at
the time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose] [IF OFFERED SECURITIES AND
WARRANTS ARE NOT IMMEDIATELY DETACHABLE: or [the bearer] [upon the register] of
the Offered Securities prior to the Detachable Date. [Prior to the Detachable
Date, the Company shall, or shall cause the registrar of the Offered Securities
to, make available at all times to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date]].
SECTION 1.3. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an amount not exceeding $___________ aggregate
principal amount of Warrant Securities (except as provided in Sections 1.4,
2.3(c), 3.2 and 4.1) may be executed by the Company and delivered to the Warrant
Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed on behalf of the Company, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to $_________ aggregate principal
amount of Warrant Securities and shall deliver such Warrant Certificates to or
upon the order of the Company. Subsequent to such original issuance of the
Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate
only if the Warrant Certificate is issued in exchange or substitution for one or
more previously countersigned Warrant Certificates, upon the partial exercise of
a warrant evidenced by a Warrant Certificate, or in connection with their
transfer as provided in Section 2.3(c) or Article IV.
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SECTION 1.4. Temporary Warrant Certificate. Pending the preparation
of definitive Warrant Certificates, the Company may execute, and upon the order
of the Company, the Warrant Agent shall authenticate and deliver, temporary
Warrant Certificates that are printed, lithographed, typewritten, mimeographed
or otherwise produced substantially of the tenor of the definitive Warrant
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company shall cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office
of the Warrant Agent [or at _____________, ___________], without charge to the
holder. Upon surrender for cancellation of any one or more temporary Warrant
Certificates, the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. (a) During the period from ___________,
____ through and including ___________, ____, the exercise price of each Warrant
shall be $________ plus [accrued amortization of the original issue discount]
[accrued interest] from ___________. During the period from _________, ____
through and including _________, ____, the exercise price of each Warrant shall
be $________ plus [accrued amortization of the original issue discount] [accrued
interest] from ____________[; provided, however, that (i) in the case of a
Warrant exercised on or before the [record date for] an interest payment date
under the Indenture that occurs on ___________, 199__, the Warrant Price shall
be the sum of $________ and any accrued interest from and including the date of
issuance up to but not including the date of exercise; and (ii) in the case of a
Warrant exercised after [a record date for] an interest payment date but before
the next succeeding interest payment date under the Indenture, the Warrant Price
shall be $________ minus an amount equal to the interest that would otherwise
accrue from and including the date of exercise up to but not including the next
succeeding interest payment date under the
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Indenture and the holder of such Warrant will not receive with respect to such
Warrant an interest payment on such interest payment date]. [In each case, the
original issue discount shall be amortized at a ___% annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months.] [Accrued interest shall be computed at a rate equal to
____% and will accrue on the basis of a 360-day year of twelve 30-day months.]
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant Price." [The original issue discount for each $_________ principal
amount of Warrant Securities is $______________.]
(b) Notwithstanding any provision in this Agreement to the contrary,
the Company may at its option, at any time during the term of the Warrants, for
a period not less than 15 days, reduce the then Warrant Price, by an amount
deemed appropriate by the Board of Directors of the Company. Such increase or
reduction shall be effective only with respect to Warrants exercised during such
period. Upon any such reduction of the Warrant Price, the Company shall give
prompt written notice of such adjustment to the Warrant Agent and the Warrant
Agent shall, on behalf of and at the expense of the Company, promptly, and in
any case within 10 days after receiving notice of such adjustment, mail by first
class mail, postage prepaid, to each holder, such notice prepared by the Company
of such adjustment. The Warrant Agent shall exhibit the notice, from time to
time, to any holder desiring an inspection thereof during reasonable business
hours. The Warrant Agent shall be entitled to rely on such notice and, except
as set forth herein, shall be under no duty or responsibility with respect to
any such notice.
(c) Warrants may be exercised by the holders thereof at any time at
the Warrant Price then in effect when the Warrant Securities are registered
pursuant to an effective registration statement under the Securities Act.
Warrants shall in no event be exercisable for the purchase of Warrant Securities
at any time when such Warrant Securities are not registered pursuant to an
effective registration statement under the Securities Act. The Company shall
promptly give all holders of Warrants notice of the effectiveness of a
registration statement in respect of Warrant Securities and of any subsequent
lapses in the effectiveness of such registration statement.
SECTION 2.2. Duration of Warrants. Each Warrant may be exercised in
whole at any time as specified herein on or after [the date thereof]
[____________, ____] and at or before 5:00 P.M., New York City time, on
___________, ____ [or such later date as the Company may designate, by notice
to the Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent] (the
"Expiration Date"). Each Warrant not exercised at or before 5:00 P.M., New
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York City time, on the Expiration Date shall become void, and all rights of the
holder of the Warrant Certificate evidencing such Warrant under this Agreement
shall cease.
SECTION 2.3. Exercise of Warrants. (a) During the period specified
in Section 2.2 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America]
[applicable currency], in cash or by certified check or official bank check or
by bank wire transfer, in each case [by bank wire transfer] [in immediately
available funds], the Warrant Price for each Warrant exercised to the Warrant
Agent at its corporate trust office [or at __________, ____________], provided
that such exercise is subject to receipt within five business days of such
[payment] [wire transfer] by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed [including
any applicable certifications if the Warrant Securities are issuable in bearer
form]. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. If,
pursuant to the immediately preceding sentence, the Warrant shall be deemed to
be exercised on a date after the Expiration Date, the exercise thereof shall be
null and void and such payment returned to the holder thereof as promptly as
practicable. The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in an account of the Company maintained with it [IF
NON-DOLLAR DENOMINATED FUNDS: or in such other account designated by the
Company] and shall advise the Company by telephone at the end of each day on
which a [payment] [wire transfer] for the exercise of Warrants is received of
the amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephone advice to the Company in writing. If the Warrant Agent
does not receive the Warrant Certificate within five business days after such
payment, upon the written request of the holder and after notice to the Company,
the Warrant Agent may repay the Warrant Price to the holder by withdrawing from
the Company's account the funds received from the holder.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Trustee under the Indenture relating
to the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iv)
such other information as the Company or such Trustee shall reasonably require.
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(c) As promptly as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations, to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by such
holder. If fewer than all of the Warrants evidenced by such Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant Certificate
evidencing the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and if any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant
Security until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest, if any, on Warrant
Securities or to enforce any of the agreements or covenants in the Indenture
relating to the Warrant Securities.
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section 3.2, the Company may require the
payment of a sum sufficient to cover any tax or other
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governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section 3.2 in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section 3.2 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
SECTION 3.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and this
Agreement.
SECTION 3.4. Consolidation, Merger, Sale or Conveyance. If at any time
there shall be a consolidation, merger, sale or conveyance to which Article 801
of the Indenture relating to the Warrant Securities applies, then in any such
event the successor or assuming corporation referred to therein shall succeed to
and be substituted for the Company, with the same effect, subject to such
Indenture, as if it had been named herein and in the Warrant as the Company. The
Company shall thereupon be relieved of any further obligation hereunder or under
the Warrants, and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Warrants issuable
hereunder which theretofore shall not have been issued by the Company, and may
execute and deliver Warrant Securities in its own name pursuant to such
Indenture, in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Warrants theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such Warrants had been issued at the date of the execution hereof. In
case of any such consolidation, merger, sale or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
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The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance
complies with the provisions of this Section 3.4 and such Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.1. Exchange and Transfer of Warrant Certificates. [IF OFFERED
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE: Upon] [IF OFFERED
SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE: Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to the Detachable Date,
each transfer of the Offered Security on the register of the Offered Securities
shall operate also to transfer the related Warrant Certificates. After the
Detachable Date, upon] surrender at the corporate trust office of the Warrant
Agent [or at ___________, ___________], Warrant Certificates evidencing Warrants
may be exchanged for Warrant Certificates in other denominations evidencing such
Warrants [or the transfer thereof may be registered in whole or in part],
provided that such other Warrant Certificates evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered. [The Warrant Agent shall
keep, at its corporate trust office [and at ________, ______________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or at ________, ______________] for exchange or
registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent.] No service
charge shall be made for any exchange [or registration of transfer] of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange [or registration of transfer]. Whenever any
Warrant Certificates are so surrendered for exchange [or registration of
transfer], an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer which will result in the issuance of a
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Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificate
surrendered for such exchange [or registration of transfer].
SECTION 4.2. Treatment of Holders of Warrant Certificates. [IF OFFERED
SECURITIES AND WARRANTS ARE NOT IMMEDIATELY DETACHABLE: Prior to the Detachable
Date, the Company, the Warrant Agent and all other persons may treat the owner
of the Offered Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any
notice to the contrary notwithstanding. After the Detachable Date,] [IF
REGISTERED WARRANTS: and prior to due presentment of a Warrant Certificate for
registration of transfer,] [T]he Company, the Warrant Agent and all other
persons may treat the holder of a Warrant Certificate as the absolute owner
thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
SECTION 4.3. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange[, registration of transfer] or exercise
of the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall promptly notify the Company of any Warrant Certificate
which has been cancelled and shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.1. Warrant Agent. The Company hereby appoints [Warrant Agent] as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
[Warrant Agent] hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant
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Certificates and this Agreement and such further powers and authority to act on
behalf of the Company as the Company may hereinafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.2. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including, without limitation, the terms and conditions set forth in
this Section 5.2, to all of which the Company agrees and to all of which the
rights of the holders from time to time of the Warrant Certificates hereunder
shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees and
expenses not to exceed $__________) incurred by the Warrant Agent without gross
negligence, bad faith or breach of this Agreement on its part in connection with
the services rendered hereunder by the Warrant Agent. The Company also agrees
to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful
misconduct, or breach of this Agreement on the part of the Warrant Agent,
arising out of or in connection with its acting as Warrant Agent hereunder, as
well as the reasonable costs and expenses of defending against any claim of such
liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the written advice of such 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 accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit or other document furnished to it by the Company reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
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(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee
or body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are specifically set forth herein and in the Warrant
Certificates and no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The Warrant
Agent shall not be under any obligation to take any action hereunder likely to
involve it in any expense or liability, the payment of which within a reasonable
time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written demand
from a holder of a Warrant Certificate with respect to such default, including,
without limitation, any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or, except
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as provided in Section 6.2, to make any demand upon the Company. This Section
5.2(i) shall not be construed to relieve the Warrant Agent from liability for
its own negligent action, failure to act or willful misconduct.
SECTION 5.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided, however, that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the Company by the filing with the
Warrant Agent of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date when it shall become effective. Any
such resignation or removal shall take effect upon the appointment by the
Company, as provided below, of a successor Warrant Agent (which shall be a bank
or trust company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.2(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, shall be removed,
shall become incapable of acting, shall be adjudged a bankrupt or insolvent,
shall commence a voluntary case under the Federal bankruptcy laws as now or
hereafter constituted or under any other applicable Federal or State bankruptcy,
insolvency or similar law, shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Warrant Agent or its property or affairs,
shall make an assignment for the benefit of creditors, shall admit in writing
its inability to pay its debts generally as they become due or shall take
corporate action in furtherance of any such actions, a decree or order for
relief by a court having jurisdiction in the premises shall have been entered in
respect of the Warrant Agent in an involuntary case under the Federal bankruptcy
laws as now or hereafter constituted or any other applicable Federal or State
bankruptcy, insolvency or similar law, a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar
official) of the Warrant Agent or of its property or affairs or any
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public officer shall take charge or control of the Warrant Agent or of its
property or affairs for the purpose of rehabilitation, conservation, winding up
or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment of such a successor Warrant Agent and
acceptance by the successor Warrant Agent of such appointment, the Warrant Agent
shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets or business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Amendment. This Warrant Agreement may be amended by the
parties hereto for any reason with the consent of the holders of not less than a
majority of the then outstanding unexercised Warrants. Notwithstanding the
foregoing, this Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, curing, correcting or supplementing any defective provision contained
herein or making any other provisions with respect to matters or questions
arising under this Agreement as the Company and the Warrant Agent may deem
necessary or desirable; provided, however, that such action shall not have a
material
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adverse effect on the interests of the holders of the Warrant Certificates.
SECTION 6.2. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
or the Warrant Agent by the holder of a Warrant Certificate pursuant to the
provisions of the Warrant Certificates, the Warrant Agent shall promptly forward
a copy of such notice or demand to the Company.
SECTION 6.3. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to [Warrant
Agent], __________________, _______________, Attention:___________________ and
any communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Tupperware Finance Company, B.V., P.O. Box 2353,
14901 South Orange Blossom Trail, Orlando, Florida, 32802, Attention:
_____________________ (or such other address as shall be specified in writing to
the other party by the Warrant Agent or the Company).
SECTION 6.4. Notices to Holders of Warrant Certificates. Any notice
to holders of Warrant Certificates which by any provisions of this Warrant
Agreement is required or permitted to be given shall be given by first class
mail, postage prepaid, to such holder's address as it appears on the books of
the Warrant Agent.
SECTION 6.5. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of __________________.
SECTION 6.6. Delivery of Prospectus. The Company shall furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and
upon the exercise of any Warrant, the Warrant Agent shall deliver to the holder
of the Warrant Certificate evidencing such Warrant, prior to or concurrently
with the delivery of the Warrant Securities issued upon such exercise, a
Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume
any responsibility for the accuracy or adequacy of such Prospectus other than
with respect to information provided by the Warrant Agent to the Company
expressly for use therein.
SECTION 6.7. Obtaining of Governmental Approvals. The Company shall
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of, and filings with,
governmental agencies and authorities under U.S. Federal and State laws
(including, without limitation, a registration statement in respect of the
-15-
<PAGE>
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be required in connection with the issuance, sale, transfer and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.8. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended or shall be construed to confer upon or
give to any person or corporation other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof. All covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
SECTION 6.9. Severability. If any provision of this Warrant
Agreement or of the Warrants shall be determined to be invalid, illegal or
unenforceable, such determination shall not in any way affect or impair the
validity, legality or enforceability of the remaining provisions hereof or
thereof.
SECTION 6.10. Successors and Assigns; Benefits of Agreement. All
covenants and agreements of the parties hereto under this Warrant Agreement
shall bind their respective successors and assigns, whether or not so expressed
herein. Nothing contained in this Agreement or in the Warrant Certificates,
express or implied, shall give to any person, other than the parties hereto and
their successors and assigns and the holders from time to time of the Warrants,
any benefits or any legal or equitable right, remedy or claim under this
Agreement.
SECTION 6.11. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, and such counterparts shall together constitute one and the same
instrument.
SECTION 6.13. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent or at ____________________, ___________________ for
inspection by the
-16-
<PAGE>
holder of any Warrant Certificate. The Warrant Agent may require such holder to
submit his Warrant Certificate for inspection by it.
SECTION 6.14. Jurisdiction; Venue. The Company hereby irrevocably
and unconditionally consents to submit to the jurisdiction of the federal and
state courts of the United States of America (the "U.S. Courts") for any
litigation arising out of or relating to this Agreement, the Warrants or any
Warrant Securities, waives any objection to the laying of venue of any such
litigation in the U.S. Courts and agrees not to plead or claim in any U.S. Court
that such litigation brought therein has been brought in an inconvenient forum.
-17-
<PAGE>
IN WITNESS WHEREOF, Tupperware Finance Company, B.V. and [Warrant Agent]
have caused this Agreement to be signed and attested by their respective duly
authorized officers and their respective corporate seals to be affixed hereunto
as of the day and year first written above.
TUPPERWARE FINANCE COMPANY, B.V.
By:
-----------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
[WARRANT AGENT]
By:
--------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
-18-
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to ______________,_________,
Securities with Warrants which this Warrant Certificate cannot be
are not immediately detachable: transferred or exchanged unless
immediately detachable: attached to a [title of Offered
Securities].]
[Form of Legend if Warrants are Prior to __________________,________,
not immediately exercisable: Warrants evidenced by this Warrant
Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TUPPERWARE FINANCE COMPANY, B.V.
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5:00 P.M., NEW YORK CITY TIME,
ON ___________, ____
No. __________ __________ Warrants
This certifies that [the bearer is the] [______________________ or
registered assigns is the registered] owner of the above-indicated number of
Warrants, each Warrant entitling such owner [IF OFFERED SECURITIES WITH WARRANTS
WHICH ARE NOT IMMEDIATELY DETACHABLE: , subject to the [bearer] [registered
owner] qualifying as a "holder" of this Warrant Certificate as defined below,]
to purchase, at any time [after 5:00 P.M., New York City time, on ____________,
____, and] on or before 5:00 P.M., New York City time, on _____________, ____,
$_________ principal amount of [title of Warrant Securities] (the "Warrant
Securities"), of Tupperware Finance Company, B.V. (the "Company"), issued and to
be issued under the Indenture (as defined below), on the following basis: during
the period from ______________, ____ through and including _______________,
____, the exercise price of each Warrant shall be $_______ plus [accrued
amortization of the original issue discount] [accrued interest] from
_______________, ____; during the period from ______________, ____ through and
including _____________, ____, the exercise price of each Warrant shall be
$________ plus [accrued amortization of the original issue discount] [accrued
interest] from _____________, ____; provided, however, that (i) in the case of a
Warrant exercised on or before the [record date for an] interest payment date
under the Indenture
A-1
<PAGE>
that occurs on _____________, 199__, the Warrant Price shall be the sum of
$________ and any accrued interest from and including the date of issuance up
to but not including such date of exercise; and (ii) in the case of a Warrant
exercised after [a record date for] an interest payment date under the Indenture
but before the next succeeding interest payment date, the Warrant Price shall be
$________ minus an amount equal to the interest that would otherwise accrue from
and including the date of exercise up to but not including the next interest
payment date and the holder will not receive an interest payment on such
interest payment date. [In each case, the original issue discount shall be
amortized at a ___% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months.]
[Accrued interest will be computed at a rate equal to _____% and will accrue on
the basis of a 360-day year of twelve 30-day months.] Such purchase price of
Warrant Securities is referred to herein as the "Warrant Price". [The Warrant
Price shall be subject to reduction as set forth in the Warrant Agreement (as
defined below).] [The original issue discount for each $______ principal amount
of Warrant Securities is $________.]
The holder may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof[, including any applicable
certifications if the Warrant Securities are issuable in bearer form,] and by
paying in full in [lawful money of the United States of America] [applicable
currency], in cash or by certified check or official bank check or by bank wire
transfer, in each case [by bank wire transfer] [in immediately available funds],
the Warrant Price for each Warrant exercised to the Warrant Agent (as defined
below) and by surrendering this Warrant Certificate within five business days of
such payment, with the purchase form on the back hereof duly executed, at the
corporate trust office of [Warrant Agent], or its successor as warrant agent
(the "Warrant Agent"), or ____________, currently at the address specified on
the reverse hereof, and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement.
The term "holder" as used herein shall mean [IF OFFERED SECURITIES WITH
WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE: prior to ___________, ____ (the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] [the bearer of this Warrant Certificate] [the person in
whose name at the time this Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose pursuant to Section
4.1 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form in denominations of
$__________ and any integral
A-2
<PAGE>
multiples thereof. Upon any exercise of fewer than all of the Warrants
evidenced by this Warrant Certificate, there shall be issued to the holder
hereof a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement, dated as of ____________ (the "Warrant Agreement"), between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at _____________, _____________].
The Warrant Securities to be issued and delivered upon the exercise of the
Warrants evidenced by this Warrant Certificate shall be issued under and in
accordance with an Indenture, dated as of ____________, 1996 (the "Indenture"),
between the Company and [NBD First Chicago Corporation], as trustee (the
"Trustee"), and shall be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Securities are
on file at the corporate trust office of the Trustee[, and at _____________,
______________].
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE:
Prior to ___________, ____, this Warrant Certificate may only be exchanged or
transferred together with the [title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting or in conjunction with an exchange or transfer of
such Offered Securities. After such date, this] [IF OFFERED SECURITIES WITH
WARRANTS WHICH ARE IMMEDIATELY DETACHABLE: Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or at _____________,
_______________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement] [effected by delivery and the
Company and the Warrant Agent may treat the bearer hereof as the owner for all
purposes].
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE:
Except as provided in the immediately preceding paragraph, after] [IF OFFERED
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE:
After] countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or at ______________, ________________] for
Warrant Certificates representing the same aggregate number of Warrants.
A-3
<PAGE>
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation, the
right to receive payments of principal, premium, if any, or interest, if any, on
the Warrant Securities or to enforce any of the agreements or covenants of the
Indenture.
A-4
<PAGE>
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
Dated as of __________________ TUPPERWARE FINANCE COMPANY, B.V.
By:
-----------------------------------
Name:
Title:
Attest:
- ------------------------------
Countersigned:
[WARRANT AGENT]
As Warrant Agent
By:
---------------------------
Authorized Signature
A-5
<PAGE>
[REVERSE OF WARRANT CERTIFICATE]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in [lawful
money of the United States of America] [applicable currency], in cash or by
certified check or official bank check or by bank wire transfer, in each case
[by bank wire transfer] [in immediately available funds], the Warrant Price in
full for Warrants exercised to [Warrant Agent] [Corporate Trust Department]
[insert address of Warrant Agent], Attention: ________, which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise ___________ Warrants,
evidenced by this Warrant Certificate, to purchase $___________ principal amount
of the [title of Warrant Securities] (the "Warrant Securities") of Continental
Bank Corporation and represents that he has tendered payment for such Warrant
Securities in [lawful money of the United States of America] [applicable
currency], in cash or by certified check or official bank check or by bank wire
transfer, in each case [by bank wire transfer] [in immediately available funds]
to the order of Tupperware Finance Company, B.V., c/o [insert name and address
of Warrant Agent], in the amount of $__________ in accordance with the terms
hereof. The undersigned requests that said principal amount of Warrant
Securities be in the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
A-6
<PAGE>
Dated: _____________________ Name: _______________________________
____________________________ Address: ____________________________
(Insert Social Security or
Other Identifying Number of
Holder)
Signature: ___________________
Signature Guaranteed: (Signature must conform in
_____________________________ all respects to name
of holder as specified on
face of this Warrant
Certificate and must bear
a signature guarantee by
a bank, trust company or
member broker of the New
York, Midwest or Pacific
Stock Exchanges)
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
By mail at:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants -- complete as
appropriate.]
A-7
<PAGE>
ASSIGNMENT
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers unto
- -------------------------- --------------------------------------
(Please print name) (Please insert social security
or other identifying number)
- --------------------------
(Address)
- --------------------------
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______________ its Attorney to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated: ___________________
_______________________________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust company
or member broker of the New York, Midwest or
Pacific Stock Exchanges)
Signature Guaranteed:
- --------------------------
A-8
<PAGE>
EXHIBIT 12
TUPPERWARE CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
HISTORICAL
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
26 weeks ended Year ended
--------------------- -------- ---------------------------------------------
<C> <C> <C> <C> <C> <C> <C>
June 29, July 1, Dec. 30, Dec. 31, Dec. 25, Dec. 26, Dec. 28,
1996 1995 1995 1994 1993 1992 1991
======== ======= ======== ======== ======== ======== ========
Income (loss) before income taxes and
cumulative effect of accounting changes $112.1 $104.2 $224.9 $191.2 $148.4 ($41.8) $97.8
======== ======= ======== ======== ======== ======= ========
Fixed Charges:
Interest (expended or capitalized) $2.5 $1.3 $3.1 $3.7 $16.7 $17.2 $27.5
Estimated interest factor on operating
lease payments (one-third) 6.0 6.2 13.1 15.6 14.0 14.1 14.4
-------- ------- -------- -------- -------- ------- --------
Total fixed charges $8.5 $7.5 $16.2 $19.3 $30.7 $31.3 $41.9
======== ======= ======== ======== ======== ======= ========
Earnings:
Income (loss) before income taxes and
cumulative effect of accounting changes $112.1 $104.2 $224.9 $191.2 $148.4 ($41.8) $97.8
Fixed charges 8.5 7.5 16.2 19.3 30.7 31.3 41.9
Interest capitalized - - - - - (0.8) (0.3)
-------- ------- -------- -------- -------- ------- --------
Income (loss) before income taxes,
cumulative effect of accounting
changes and fixed charges $120.6 $111.7 $241.1 $210.5 $179.1 ($11.3) $139.4
======== ======= ======== ======== ======== ======= ========
Ratio of earnings to fixed charges 14.2X 14.9X 14.9X 10.9X 5.8X - (A) 3.3X
======== ======= ======== ======== ======== ======= ========
</TABLE>
(A) For the fiscal year ended December 26, 1992, fixed charges exceeded earnings
by $42.6 million. Pre-tax income was reduced by a $136.7 million charge
primarily related to consolidation of manufacturing capacity and
restructuring of the U.S. distribution system. Excluding this charge, the
ratio would have been 4.0.
<PAGE>
EXHIBIT 12
TUPPERWARE CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
PRO FORMA FOR DISTRIBUTION
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
26 weeks Year
ended ended
June 29, Dec. 30,
1996 1995
========= =======
<S> <C> <C>
Earnings:
Income before income taxes, cumulative
effect of accounting changes and
fixed charges - historical from
Exhibit 12(a) $120.6 $241.1
====== ======
Fixed charges:
Fixed charges - historical from Exhibit 12(a) $8.5 $16.2
Adjustment for estimated increase in
interest expense from borrowings incurred
in conjunction with the Distribution 7.0 16.9
------ ------
Total fixed charges $15.5 $33.1
====== ======
Pro Forma ratio of earnings to fixed
charges 7.8 X 7.3 X
====== ======
</TABLE>
<PAGE>
Exhibit 23(a)
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 of our report dated
February 23, 1996, except as to Note 13, which is as of April 9, 1996, appearing
on page F-2 of Tupperware Corporation's Form 10/A4. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Orlando, Florida
September 12, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Corporation, a Delaware corporation, hereby constitutes and
appoints each of Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his
true and lawful attorney and agent, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorney and agent may deem necessary or advisable to
enable Tupperware Corporation to comply with the Securities Act of 1933, as
amended, and any rules and regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Securities Act of 1933 of securities issued by Tupperware Corporation,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as a
Director and Officer of Tupperware Corporation, to one or more Registration
Statements to be filed with the Securities and Exchange Commission with respect
thereto, to any and all amendments, including post-effective amendments, to the
said Registration Statements and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the said attorneys
and agents, or any of them, has done, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Warren L. Batts
-----------------------
Warren L. Batts
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Officer of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as an Officer of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Paul B. Van Sickle
-----------------------
PAUL B. VAN SICKLE
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ William O. Bourke
-----------------------
WILLIAM O. BOURKE
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as her true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand this 7th day
of August, 1996.
/s/ Ruth M. Davis
-----------------------
RUTH M. DAVIS
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Lloyd C. Elam
-----------------------
Lloyd C. Elam
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Corporation, a Delaware corporation, hereby constitutes and
appoints each of Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his
true and lawful attorney and agent, in the name and on behalf of the
undersigned, to do any and all acts and things and execute any and all
instruments which the said attorney and agent may deem necessary or advisable to
enable Tupperware Corporation to comply with the Securities Act of 1933, as
amended, and any rules and regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Securities Act of 1933 of securities issued by Tupperware Corporation,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as a
Director and Officer of Tupperware Corporation, to one or more Registration
Statements to be filed with the Securities and Exchange Commission with respect
thereto, to any and all amendments, including post-effective amendments, to the
said Registration Statements and to any and all instruments and documents filed
as a part of or in connection with the said Registration Statements or
amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the said attorneys
and agents, or any of them, has done, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ E. V. Goings
-----------------------
E. V. GOINGS
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Clifford J. Grum
-----------------------
Clifford J. Grum
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Joe R. Lee
-----------------------
Joe R. Lee
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Joseph E. Luecke
-----------------------
Joseph E. Luecke
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Bob Marbut
-----------------------
Bob Marbut
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of Tupperware
Corporation, a Delaware corporation, hereby constitutes and appoints each of
Charles L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful
attorney and agent, in the name and on behalf of the undersigned, to do any and
all acts and things and execute any and all instruments which the said attorney
and agent may deem necessary or advisable to enable Tupperware Corporation to
comply with the Securities Act of 1933, as amended, and any rules and
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration under the Securities Act of
1933 of securities issued by Tupperware Corporation, including specifically, but
without limiting the generality of the foregoing, the power and authority to
sign the name of the undersigned in his capacity as a Director of Tupperware
Corporation, to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th day
of August, 1996.
/s/ Robert M. Price
-----------------------
Robert M. Price
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Finance Company B.V., a corporation organized under the laws of
the Kingdom of The Netherlands, hereby constitutes and appoints each of Charles
L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful attorney and
agent, in the name and on behalf of the undersigned, to do any and all acts and
things and execute any and all instruments which the said attorney and agent may
deem necessary or advisable to enable Tupperware Finance Company B.V. to comply
with the Securities Act of 1933, as amended, and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of securities
issued by Tupperware Finance Company B.V., including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of the undersigned in his capacity as a Director and Officer of Tupperware
Finance Company B.V. to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of September, 1996.
/s/ Paul B. Van Sickle
----------------------
Paul B. Van Sickle
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Finance Company B.V., a corporation organized under the laws of
the Kingdom of The Netherlands, hereby constitutes and appoints each of Charles
L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful attorney and
agent, in the name and on behalf of the undersigned, to do any and all acts and
things and execute any and all instruments which the said attorney and agent may
deem necessary or advisable to enable Tupperware Finance Company B.V. to comply
with the Securities Act of 1933, as amended, and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of securities
issued by Tupperware Finance Company B.V., including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of the undersigned in his capacity as a Director and Officer of Tupperware
Finance Company B.V. to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of September, 1996.
/s/ Mark H. Bobek
------------------
Mark H. Bobek
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Finance Company B.V., a corporation organized under the laws of
the Kingdom of The Netherlands, hereby constitutes and appoints each of Charles
L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful attorney and
agent, in the name and on behalf of the undersigned, to do any and all acts and
things and execute any and all instruments which the said attorney and agent may
deem necessary or advisable to enable Tupperware Finance Company B.V. to comply
with the Securities Act of 1933, as amended, and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of securities
issued by Tupperware Finance Company B.V., including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of the undersigned in his capacity as a Director and Officer of Tupperware
Finance Company B.V. to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of September, 1996.
/s/ Thomas P. O'Neill, Jr.
--------------------------
Thomas P. O'Neill, Jr.
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Finance Company B.V., a corporation organized under the laws of
the Kingdom of The Netherlands, hereby constitutes and appoints each of Charles
L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful attorney and
agent, in the name and on behalf of the undersigned, to do any and all acts and
things and execute any and all instruments which the said attorney and agent may
deem necessary or advisable to enable Tupperware Finance Company B.V. to comply
with the Securities Act of 1933, as amended, and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of securities
issued by Tupperware Finance Company B.V., including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of the undersigned in his capacity as a Director and Officer of Tupperware
Finance Company B.V. to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of September, 1996.
/s/ Michael Posteshman
-------------------------------
Michael Poteshman
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Finance Company B.V., a corporation organized under the laws of
the Kingdom of The Netherlands, hereby constitutes and appoints each of Charles
L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful attorney and
agent, in the name and on behalf of the undersigned, to do any and all acts and
things and execute any and all instruments which the said attorney and agent may
deem necessary or advisable to enable Tupperware Finance Company B.V. to comply
with the Securities Act of 1933, as amended, and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of securities
issued by Tupperware Finance Company B.V., including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of the undersigned in his capacity as a Director and Officer of Tupperware
Finance Company B.V. to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of September, 1996.
/s/ Robert J. Saltarelli
-------------------------------
Robert J. Saltarelli
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and Officer
of Tupperware Finance Company B.V., a corporation organized under the laws of
the Kingdom of The Netherlands, hereby constitutes and appoints each of Charles
L. Dunlap, Thomas M. Roehlk and Carol A. Vix as his true and lawful attorney and
agent, in the name and on behalf of the undersigned, to do any and all acts and
things and execute any and all instruments which the said attorney and agent may
deem necessary or advisable to enable Tupperware Finance Company B.V. to comply
with the Securities Act of 1933, as amended, and any rules and regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of 1933 of securities
issued by Tupperware Finance Company B.V., including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of the undersigned in his capacity as a Director and Officer of Tupperware
Finance Company B.V. to one or more Registration Statements to be filed with the
Securities and Exchange Commission with respect thereto, to any and all
amendments, including post-effective amendments, to the said Registration
Statements and to any and all instruments and documents filed as a part of or in
connection with the said Registration Statements or amendments thereto; HEREBY
RATIFYING AND CONFIRMING all that the said attorneys and agents, or any of them,
has done, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of September, 1996.
/s/ Christian E. Skroeder
-------------------------------
Christian E. Skroeder
<PAGE>
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)
-----
----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------------------
TUPPERWARE CORPORATION TUPPERWARE FINANCE COMPANY B.V.
(EXACT NAME OF OBLIGOR AS (EXACT NAME OF OBLIGOR AS
SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER)
DELAWARE THE NETHERLANDS
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
36-40623333 NOT APPLICABLE
(I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION
NUMBER) NUMBER)
14901 SOUTH ORANGE BLOSSOM TRAIL 14901 SOUTH ORANGE BLOSSOM TRAIL
ORLANDO, FLORIDA 32837 ORLANDO, FLORIDA 32837
(ADDRESS OF PRINCIPAL EXECUTIVE (ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES) OFFICES)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 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.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 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 now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 12th day of September,
1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ JOHN R. PRENDIVILLE
JOHN R. PRENDIVILLE
VICE PRESIDENT
* EXHIBIT 1, 2, AND 3 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 12 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 26 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE
CIT GROUP HOLDINGS, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
FEBRUARY 16, 1993 (REGISTRATION NO. 33-58418). EXHIBIT 4 IS HEREIN INCORPORATED
BY REFERENCE TO THE FORM T-1 OF THE FIRST NATIONAL BANK OF CHICAGO, FILED AS
EXHIBIT 25.2 TO THE REGISTRATION STATEMENT ON FORM S-3 OF JOHN DEERE CAPITAL
CORPORATION, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 21,
1996 (REGISTRATION NO. 333-10561).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture among Tupperware Finance
Company B.V. (the "Issuer"), Tupperware Corporation (the "Guarantor") and The
First National Bank of Chicago, the undersigned, in accordance with Section
321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the
reports of examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
VERY TRULY YOURS,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ JOHN R. PRENDIVILLE
JOHN R. PRENDIVILLE
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------ (-
THOUSANDS RCFD BIL MIL THOU ----------
----------------- ---- -------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)......... 0081 3,572,641 1.a.
b. Interest-bearing balances(2).................................. 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A).... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).. 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold............................................ 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell............... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)............................................................ RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses..................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve......................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c).......................... 2125 18,745,928 4.d.
5. Assets held in trading accounts.................................. 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases)......... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)..................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding..... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)........................... 2143 156,715 10.
11. Other assets (from Schedule RC-F)................................ 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)......................... 2170 49,335,206 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................ RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)............................. RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing................................... RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E, part II)................. RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing................................ RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing................................... RCFN 6636 11,910,121 13.b.(2)
14. 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:
a. Federal funds purchased................................ RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase......... RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury............... RCON 2840 104,546 15.a.
b. Trading Liabilities.................................... RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less............. RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year........... RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases.................................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding... RCFD 2920 632,259 18.
19. Subordinated notes and debentures......................... RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G).................... RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)............ RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus.......... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............. RCFD 3838 0 23.
24. Common stock.............................................. RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).. RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves................. RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-
for-sale securities.................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments....... RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)......... RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)..................... RCFD 3300 49,335,206 29.
</TABLE>
Memorandum
<TABLE>
To be reported only with the March Report of Condition.
<S> <C> <C>
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
---------------------
auditors as of any date during 1995 .....................................RCFD 6724.....| N/A | M.1.
---------------------
</TABLE>
<TABLE>
<C> <S> <C> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
