<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE DIAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 51-0374887
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
ORGANIZATION)
</TABLE>
15501 NORTH DIAL BOULEVARD
SCOTTSDALE, AZ 85260-1619
(602) 754-3425
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MALCOLM JOZOFF
CHAIRMAN OF THE BOARD OF DIRECTORS, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
THE DIAL CORPORATION
15501 NORTH DIAL BOULEVARD
SCOTTSDALE, AZ 85260-1619
(602) 754-3425
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES OF ALL COMMUNICATIONS, INCLUDING COMMUNICATIONS SENT TO AGENT FOR
SERVICE, SHOULD BE SENT TO:
<TABLE>
<S> <C>
STUART H. GELFOND, ESQ. JANE E. OWENS, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON SENIOR VICE PRESIDENT AND GENERAL COUNSEL
ONE NEW YORK PLAZA THE DIAL CORPORATION
NEW YORK, NEW YORK 10004-1980 15501 NORTH DIAL BOULEVARD
(212) 859-8000 SCOTTSDALE, AZ 85260-1619
(602) 754-3425
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
TITLE OF CLASS OF AMOUNT TO BE PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED AGGREGATE OFFERING PRICE(1)(2) REGISTRATION FEE(3)
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
Debt Securities................ $300,000,000 $300,000,000 $88,500
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value... (4) -- --
- ---------------------------------------------------------------------------------------------------------------------------
Total.......................... $300,000,000 $300,000,000 $88,500
===========================================================================================================================
</TABLE>
(1) In U.S. dollars or the equivalent thereof in foreign currencies, composite
currencies or currency units.
(2) Exclusive of accrued interest and distributions, if any.
(3) Calculated pursuant to Rule 457.
(4) Also includes such indeterminate number of shares of Common Stock as may be
issued upon conversion of or exchange for other Debt Securities that provide
for conversion or exchange into Common Stock.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
JURISDICTION.
SUBJECT TO COMPLETION DATED MARCH 5, 1998
PROSPECTUS
$300,000,000
[DIAL CORP LOGO]
DEBT SECURITIES
------------------------
The Dial Corporation (the "Company" or "Dial") may offer, issue and sell
from time to time senior or subordinated debt securities (the "Debt
Securities"), in each case, in amounts, at prices and on such terms to be
determined at the time of the offering.
The Debt Securities offered pursuant to this Prospectus may be issued in
one or more series and/or issuances and will have an aggregate initial public
offering price of up to $300,000,000 (or the equivalent thereof, based on the
applicable exchange rate at the time of offering, in one or more foreign
currencies, currency units, or composite currencies as shall be designated by
the Company). Certain specific terms of the particular Debt Securities in
respect of which this Prospectus is being delivered are set forth in the
accompanying Prospectus Supplement (the "Prospectus Supplement"), including,
where applicable, the specific title, the aggregate principal amount, the
aggregate offering price, the ranking as senior debt or subordinated debt, the
denomination, the maturity, any premium, any interest rate (which may be fixed,
floating or adjustable), the time and method of calculating any payment of
interest, the place or places where principal of, any premium, and any interest,
on such Debt Securities will be payable, the currency in which principal of, any
premium, and any interest, on such Debt Securities will be payable, any terms of
redemption at the option of the Company or repayment at the option of the holder
thereof, any sinking fund provisions, any terms for conversion or exchange into
other securities, any listing on a securities exchange, the public offering
price and any other terms of the offering and sale thereof. If so specified in
the applicable Prospectus Supplement, Debt Securities of a series may be issued
in whole or in part in the form of one or more temporary or permanent global
securities.
Unless otherwise specified in a Prospectus Supplement, the Debt Securities,
when issued, will be unsecured and unsubordinated obligations of the Company and
will rank pari passu in right of payment with all other unsecured and
unsubordinated indebtedness of the Company. This Prospectus may not be used to
consummate sales of Debt Securities unless accompanied by a Prospectus
Supplement.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 HEREIN FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE DEBT
SECURITIES.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Debt Securities may be sold to or through underwriters or dealers as
designated from time to time, to other purchasers directly or through agents
designated from time to time or through a combination of such methods. If agents
of the Company or any dealers or underwriters are involved in the sale of the
Debt Securities in respect of which this Prospectus is being delivered, the
names of such agents, dealers or underwriters and any applicable commissions or
discounts will be set forth in or may be calculated from the Prospectus
Supplement with respect to such Debt Securities. See "Plan of Distribution."
The date of this Prospectus is , 1998.
<PAGE> 3
Certain persons, including any underwriters, participating in this offering
may engage in transactions that stabilize, maintain or otherwise affect the
price of the Debt Securities. Such transactions may include stabilizing and the
purchase of Debt Securities to cover syndicate short positions. For a
description of these activities, see "Plan of Distribution."
------------------------
AVAILABLE INFORMATION
The Company 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 filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional
Offices at Seven World Trade Center, 13th Floor, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission also maintains a website
(http://www.sec.gov) from which such reports, proxy statements and other
information may be obtained. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments, supplements and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), of which this Prospectus constitutes a part. This Prospectus
does not contain all of the information set forth in the Registration Statement,
certain parts of which were omitted in accordance with the rules and regulations
of the Commission. For further information, reference is hereby made to the
Registration Statement and to the schedules and exhibits filed therewith. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission
are not necessarily complete, and in each instance reference is made to the copy
of such document so filed. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document filed with the Commission by the Company pursuant to
the Exchange Act is incorporated herein by reference: the Company's Annual
Report on Form 10-K for the fiscal year ended January 3, 1998.
All other documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the initial filing of the
Registration Statement and prior to the closing of the offering of the Debt
Securities shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the respective dates of the filing of such
documents.
Any statement contained herein or in a document all or a portion of which
is incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus or any Prospectus
Supplement to the extent that a statement contained herein (with respect to any
statement in such documents which are so incorporated or deemed to be
incorporated), in the accompanying Prospectus Supplement 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 or any Prospectus Supplement.
Upon the request of any person to whom a copy of this Prospectus and any
Prospectus Supplement has been delivered, the Company will provide without
charge to such person (including a beneficial owner) a copy of any documents
incorporated by reference therein (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the document that
this Prospectus or any Prospectus Supplement incorporates by reference).
Requests for such copies should be directed to: The Dial Corporation, Attention:
Walter Rogers, Vice President-Investor Relations, 15501 North Dial Boulevard,
Scottsdale, Arizona 85260-1619; telephone number: (602) 754-3425.
2
<PAGE> 4
The following information is qualified in its entirety by the more detailed
information and financial statements and notes thereto appearing elsewhere in or
incorporated by reference into this Prospectus. Prior to August 15, 1996, the
business of the Company was operated as the consumer products business (the
"Consumer Products Business") of Viad Corp (then known as The Dial Corp)
("Former Parent"). On August 15, 1996, Former Parent distributed to its
stockholders all of the Company's then outstanding common stock (the "Spin-off")
causing the Company to become a separate publicly-traded company. Unless
otherwise indicated, (i) all references in this Prospectus to the "Company" or
"Dial" for periods prior to the Spin-off refer to the Consumer Products Business
of Former Parent and for periods following the Spin-off refer to the Company and
its consolidated subsidiaries, (ii) all financial information included or
incorporated by reference in this Prospectus has been prepared as if the Company
had always been a separate operating company, (iii) the industry data included
or incorporated by reference in this Prospectus are derived from publicly
available industry trade journals and reports, including, with respect to market
rank and market share, reports published by Information Resources, Inc., and
other publicly available sources which the Company has not independently
verified but which the Company believes to be reliable and (iv) references to
years and periods are to fiscal years and periods and, with respect to
comparative industry data, years are to calendar years. Unless otherwise noted,
all market share data as of any particular date are as of the 52 weeks then
ended and are based on sales in the U.S. market, which with respect to soap
products is measured by ounces sold, with respect to detergent products is
measured by standard cases sold and with respect to air fresheners and canned
meats is measured by units sold.
This Prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act. When used
in this Prospectus, the words "anticipates," "intends," "plans," "believes,"
"estimates" and similar expressions are intended to identify forward-looking
statements. Such statements, including, but not limited to, the Company's
statements regarding potential international expansion, the estimated benefits
of the Company's cost-cutting program and potential product introductions, are
based on management's beliefs, as well as on assumptions made by and information
currently available to management, and involve various risks and uncertainties,
certain of which are described under "Risk Factors" in this Prospectus and
certain of which are beyond the Company's control. The Company's actual results
could differ materially from those expressed in any forward-looking statements
made by or on behalf of the Company. In light of these risks and uncertainties,
there can be no assurance that the forward-looking information included or
incorporated by reference in this Prospectus will in fact transpire.
THE COMPANY
Dial is a consumer products company with net sales of $1.4 billion and
operating income of $162 million in 1997. The Company markets its products
primarily under such well-known household brand names as DIAL(R) soaps, PUREX(R)
detergents, RENUZIT(R) air fresheners and ARMOUR(R) canned meats.
The Company was incorporated in the State of Delaware on June 3, 1996. The
Company's corporate headquarters and principal executive offices are located at
15501 North Dial Boulevard, Scottsdale, Arizona 85260-1619, telephone number
(602) 754-3425.
3
<PAGE> 5
RISK FACTORS
In addition to the other information in this Prospectus and any
accompanying Prospectus Supplement, the following factors should be considered
carefully before investing in the Debt Securities offered hereby.
INTENSE COMPETITION IN THE CONSUMER PRODUCTS INDUSTRY
The consumer products industry, particularly its detergent, personal care
and air freshener categories, is intensely competitive. Several of the Company's
most significant competitors, including The Procter & Gamble Company, Lever
Brothers Co. (a division of Unilever plc) and Colgate-Palmolive Company, have
greater financial resources than the Company and may be willing to commit
significant resources to protecting their own market shares or to capturing
market share from the Company. As a result, the Company may need to incur
greater costs than previously incurred for trade and consumer promotions and
advertising to preserve or improve market share and to introduce and establish
new products and line extensions. At the same time, the Company may need to
undertake additional production-related cost-cutting measures to enable it to
respond to competitors' price cuts and marketing efforts without reducing the
Company's margins. There can be no assurance that the Company will be able to
make such additional expenditures or implement such cost-cutting measures or
that if made or implemented they will be effective.
CONSUMER PRICING PRESSURES
Consumer products, particularly those that are value-priced, are subject to
significant price competition. From time to time, the Company may need to engage
in price-cutting initiatives for some of its products to respond to competitive
and consumer pressures. The failure of the Company's sales volumes to grow
sufficiently to improve overall revenues and income as a result of a competitive
price reduction could have a material adverse effect on the financial
performance of the Company.
TRADE CUSTOMER PRICING PRESSURES; COMPETITIVE RETAIL ENVIRONMENT
The Company faces pricing pressure from its trade customers. Because of the
competitive retail environment, retailers have increasingly sought to reduce
inventory levels and obtain pricing concessions from vendors. In addition,
because consumer products companies, including the Company, have historically
offered end-of-quarter discounts to achieve quarterly sales goals, trade
customers have been inclined to delay inventory restocking until quarter-end.
Over the past 18 months, the Company has reduced end-of-quarter discounts to
retailers and has changed its sales incentive structure to emphasize not only
quarterly revenue targets but also trade spending management and other personal
performance targets. The reduction in discounts has not had and the Company
believes it will not have a material adverse effect on sales although there can
be no assurance in that regard. The Company is also subject to the risk that
high-volume customers could seek alternative pricing concessions or better trade
terms. The Company's performance is also dependent upon the general health of
the retail environment and could be materially adversely affected by changes
therein and by the financial difficulties of retailers.
DEPENDENCE ON KEY CUSTOMERS
The Company's top ten customers accounted for 35% of net sales for 1997.
Wal-Mart Stores Inc. (and its affiliate, SAM's Club) ("Wal-Mart") was the
Company's largest customer, accounting for 17% of the Company's net sales in
1997. The loss of, or a substantial decrease in the volume of purchases by,
Wal-Mart or any of the Company's other top customers could have a material
adverse effect on the Company's results of operations.
PRICE VOLATILITY OF RAW MATERIALS; SINGLE SOURCE SUPPLIER
While the Company believes that it may, in certain circumstances, be able
to respond to price increases for certain raw materials by increasing sales
prices, rapid increases in the prices of such raw materials could have a
material adverse impact on the Company's financial results. For example, tallow
(a key ingredient in Dial bar soaps) has experienced price fluctuations within
the range of $0.16 and $0.28 per pound from
4
<PAGE> 6
January 1, 1995 to December 31, 1997. Recently, the price of tallow has been
trading at the lower end of this historical range. Because the majority of the
competitors' soap products use considerably less tallow in their bar soap
products, the Company may not be able to increase the prices of its Dial bar
soaps in response to increases in tallow prices. In addition, the antibacterial
agent, Triclosan, which is the active ingredient used in Liquid Dial products,
is sourced from a single supplier. Although the Company has an adequate supply
of Triclosan for its current and foreseeable needs, a significant disruption in
this supply could have a short-term material adverse impact on the Company's
financial results. The Company seeks to mitigate this risk by entering into
contracts to provide up to six-month supplies of tallow, Triclosan and packaging
materials. Long-term hedging opportunities against price increases for these
items are generally not available.
DEPENDENCE ON DOMESTIC MARKETS; RISKS ASSOCIATED WITH INTERNATIONAL EXPANSION
While a number of the Company's competitors have diversified their revenues
to include a strong international component, the Company is currently dependent
primarily on sales generated in the U.S. markets (92% of sales in 1997). With
respect to a number of the Company's most significant product categories,
including detergents and bar soaps, the U.S. markets are mature and
characterized by high household penetration. The Company's unit sales growth in
these domestic markets will depend on increasing usage by consumers, product
innovation and in capturing market share from competitors. There can be no
assurance that the Company will succeed in implementing its strategies to
achieve such domestic growth.
To reduce its dependence on domestic revenues, the Company has adopted a
strategy to further penetrate international markets. In implementing this
strategy, the Company faces barriers to entry and the risk of competition from
local and other companies that already have established global businesses, risks
generally associated with conducting business internationally, including
exposure to currency fluctuations, limitations on foreign investment,
import/export controls, nationalization, unstable governments and legal systems
and the additional expense and risks inherent in operating in geographically and
culturally diverse locations. Because the Company plans to develop its
international business through acquisitions as well as joint ventures, co-
packaging arrangements and/or other alliances, the Company may also be subject
to risks associated with such acquisitions, ventures, arrangements and
alliances, including those relating to the marriage of different corporate
cultures and shared decision-making. In addition, since the Company's current
international distribution capabilities are extremely limited, the Company will
also need to acquire a distribution network or enter into alliances with
existing distributors before it can effectively conduct operations in new
markets. There can be no assurance that the Company will succeed in increasing
its international business in a profitable manner, and a failure to expand this
business may have a material adverse effect on the Company.
The Company has a significant number of registered foreign trademarks as
well as pending foreign trademark applications. There can be no assurance that
the Company will successfully register any foreign trademarks for which
applications are currently pending or that such trademarks, once registered,
together with any existing registered foreign trademarks, will be protected in
the foreign markets in which they are used.
ADVERSE PUBLICITY; PRODUCT RECALLS
Certain news broadcasts by major U.S. television and radio networks have
focused on the use of antibacterial agents to kill germs on various surfaces.
Triclosan, the active ingredient in Liquid Dial, has also been a focus of these
broadcasts. Although none of the broadcasts disputed that Triclosan kills germs
on the skin, some third party experts did question whether it provides any
additional protection beyond that provided by non-antibacterial soap products.
Although the Company has test results that it believes prove that Triclosan
provides consumers with additional protection in limiting exposure to
bacteria-related diseases, there can be no assurance that the adverse publicity
stemming from these broadcasts will not adversely affect the Company's sales of
its antibacterial soap products and its results of operations.
Because the Company shares the use of the Armour trademark for food
products with ConAgra Inc., the manufacturer of Armour-branded non-canned meat
products, the Company faces the risk that consumer
5
<PAGE> 7
preferences and perceptions with respect to any of the Company's Armour products
may be influenced by adverse publicity affecting any of the Armour-branded
products of ConAgra, Inc.
From time to time, consumer product companies, including Dial, have had to
recall certain products for various reasons, which costs of recall or other
liabilities could be material to such companies. To date, the Company has not
made any product recalls that have been material to the Company's financial
condition. In addition, adverse publicity regarding any such product recalls
could also be material to the Company.
ENVIRONMENTAL CONCERNS REGARDING DETERGENT COMPOUND
Nonlyphenol ethoxylate ("NPE") is an ingredient used in the Company's
liquid and powder detergent products. Certain environmental and regulatory
groups have raised concerns regarding the toxicity of compounds produced from
NPE as it decomposes and the adverse impact on the reproductive health of
certain aquatic animals exposed to those compounds. Although to the best of the
Company's knowledge none of the studies undertaken on NPE have demonstrated a
link between the compound and such effect in the environment or in human beings,
there can be no assurance that subsequent studies will not in fact demonstrate
such a link or demonstrate other adverse environmental consequences. Current
government regulations do not impose any restrictions on the use of NPE, or
impose any liability on any of the businesses that utilize NPE in the products
they manufacture. The Company believes, however, that a number of governmental
agencies in North America and Europe are discussing formal regulation of NPE in
the environment. The Company is in the process of reformulating its detergents
to eliminate this compound as an ingredient. The additional expense the Company
expects to incur as a result of this reformulation is not expected to have a
material adverse impact on the Company's financial results. In addition, the
Company believes that it will not incur any significant environmental liability
as a result of the use of NPE in its products.
DEPENDENCE ON KEY PERSONNEL
The operation of the Company requires managerial expertise. Of the
Company's key personnel, only the Chief Executive Officer has an employment
contract with the Company. There can be no assurance that any of the Company's
key employees will remain in the Company's employ. The loss of such key
personnel could have a material adverse effect on the Company's operations.
TURNOVER; EMPLOYEE RELATIONS
Primarily as a result of the restructuring of its business, the Company
discharged approximately 950 salaried and non-salaried employees during 1995 and
1996. In addition, the Company experienced greater aggregate voluntary turnover
of salaried employees in 1996 and 1997 than the industry average. Although the
Company believes that it presently has sufficient staffing, there can be no
assurance that the Company would not be materially adversely affected by any
future significant voluntary turnover of salaried or other employees.
Five of the Company's seven plants are unionized. The Company's contracts
with its various unions are scheduled for renegotiation as follows: (i)
International Brotherhood of Teamsters (covering approximately 350 employees at
the Company's St. Louis, Missouri plant) in July 1998; (ii) Oil, Chemical and
Atomic Workers union (covering approximately 100 employees at the Company's
Bristol, Pennsylvania plant) in May 1999; (iii) United Food and Commercial
Workers union (covering approximately 475 employees at the Company's Aurora,
Illinois plant) in August 1999; and (iv) the United Food and Commercial Workers
union (covering approximately 500 employees at the Company's Fort Madison, Iowa
plant) in September 1999. There can be no assurance that these contracts can be
renegotiated on terms acceptable to the Company. In 1993, the Company's St.
Louis, Missouri plant experienced a five-week stoppage. Although the Company
believes that its relations with the employees at this plant and other plants
are satisfactory, there can be no assurance that the Company will not face
similar labor disputes in the future or that such disputes will not be material
to the Company.
6
<PAGE> 8
ENVIRONMENTAL MATTERS
The Company is subject to a variety of environmental and health and safety
laws in each jurisdiction in which it operates. These laws and regulations
pertain to the Company's present and past operations.
Since 1980, the Company has received notices or requests for information
with respect to 27 sites that have been deemed "Superfund" sites under the
federal Comprehensive Environmental Response, Compensation and Liability Act,
five of which are currently active, 14 of which are inactive, and eight of which
have been settled. The Company is also engaged in investigatory and remedial
activities with respect to four closed plants previously operated by Former
Parent. As of January 3, 1998, the Company had accrued in its financial
statements approximately $10 million in reserves for expenses related to
Superfund sites and the clean-up of closed plant sites, which reserves it
believes are adequate.
The Company does not anticipate that the costs to comply with environmental
laws and regulations or the costs related to Superfund sites and the clean-up of
closed plant sites will have a material adverse effect on the Company's capital
expenditures, earnings or competitive position; however, there can be no
assurance that other developments, such as the emergence of unforeseen claims or
liabilities or the imposition of increasingly stringent laws, regulations and
enforcement policies will not result in material costs in the future.
RISKS OF POTENTIAL ACQUISITIONS
The Company may acquire or make substantial investments in complementary
businesses or products in the future. Any such acquisition or investment would
entail various risks, including the difficulty of assimilating the operations
and personnel of the acquired businesses or products, the potential disruption
of the Company's ongoing business and, generally, the potential inability of the
Company to obtain the desired financial and strategic benefits from the
acquisition or investment. These factors could have a material adverse effect on
the Company's financial results. Future acquisitions and investments by the
Company also could result in substantial cash expenditures, potentially dilutive
issuances of equity securities, the incurrence of additional debt and contingent
liabilities, and amortization expenses related to goodwill and other intangible
assets, which could adversely affect the Company's financial results and
condition. The Company engages from time to time in discussions with respect to
potential acquisitions, some of which may be material.
YEAR 2000 COMPLIANCE
Many existing computer systems and software products, including several
used by the Company, are coded to accept only two digit entries in the date code
field. Beginning in the year 2000, these date code fields will need to accept
four digit entries to distinguish 21st century dates from 20th century dates. As
a result, the Company's date critical functions related to the year 2000 and
beyond, such as sales, distribution, manufacturing, purchasing, inventory
control, trade promotion management, planning and replenishment, facilities and
financial systems may be materially adversely affected unless these computer
systems are or become year 2000 compliant.
The Company has begun a comprehensive upgrade of its information systems to
significantly improve operating efficiencies and to identify, correct or
reprogram, and test its systems for year 2000 compliance. In 1997, the Company
incurred costs of $12 million to upgrade its information technology and expects
to spend an additional $40 million over the next two years for such upgrades.
There can be no assurance, however, that the Company's computer systems will be
year 2000 compliant in a timely manner or that the Company will not incur
significant additional expenses pursuing year 2000 compliance. Furthermore, even
if the Company's systems are year 2000 compliant, there can be no assurance that
the Company will not be materially adversely affected by the failure of others
to become year 2000 compliant. For example, the Company may be adversely
affected by the disruption or inaccuracy of data provided to the Company by
non-year 2000 compliant third parties and the failure of the Company's customers
and service providers, such as independent shipping companies, to become year
2000 compliant. There can be no assurance that the year 2000 problem will not
have a material adverse effect on the Company in the future.
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<PAGE> 9
USE OF PROCEEDS
Unless otherwise indicated in any accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities for
general corporate purposes, which may include capital expenditures, the
repayment of indebtedness, the funding of working capital, acquisitions and
stock repurchases. While the Company reviews acquisition opportunities in the
ordinary course of business, there can be no assurance that any acquisitions
will be consummated.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the periods indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
------------------------------------------------------
JAN. 3, DEC. 28, DEC. 30, DEC. 31, DEC. 25,
1998 1996 1995 1994 1993
------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)......... 6.98x 3.01x(2) (2)(3) 9.48x 14.04x
</TABLE>
- ---------------
(1) In calculating this ratio, earnings consist of income (loss) before income
taxes plus fixed charges. Fixed charges consist of interest expense, fees
incurred on the sale of accounts receivable and the portion of rental
expense under operating leases which has been deemed by the Company to be
representative of the interest factor. Prior to August 15, 1996, the Company
was the subsidiary of its Former Parent. Interest expense during that period
was incurred primarily on advances from its Former Parent that bore interest
at the prime lending rate. The average balance of interest bearing advances
from the Former Parent prior to the Spin-off were approximately $160
million, $240 million, $163 million and $47 million for 1996, 1995, 1994 and
1993, respectively.
(2) Includes restructuring charges, asset write-downs and Spin-off transaction
costs of $60 million in 1996 and restructuring charges and asset write-downs
of $156 million in 1995.
(3) In 1995, fixed charges exceeded earnings by approximately $47 million.
8
<PAGE> 10
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by the Prospectus Supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Offered Debt Securities.
The Offered Debt Securities are to be issued in one or more series under an
Indenture as amended or supplemented from time to time (the "Indenture") between
the Company and Norwest Bank Arizona, N.A., as Trustee. The term "Trustee," as
used herein shall mean Norwest Bank Arizona, N.A.; if at any time there is more
than one Trustee acting under the Indenture, the term "Trustee" as used herein
with respect to Debt Securities of any particular series shall mean the Trustee
with respect to the Offered Debt Securities of such series. The Indenture has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part and is subject to and governed by the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). The following summaries of certain
provisions of the Indenture and the Offered Debt Securities do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all provisions of the Indenture, including the definitions of certain terms
therein and of those terms made a part thereof by the Trust Indenture Act.
Wherever particular provisions or defined terms of the Indenture are referred
to, such provisions or defined terms are incorporated herein by reference.
GENERAL
The Debt Securities will be unsecured obligations of the Company. Unless
otherwise stated in a Prospectus Supplement, the Debt Securities will rank pari
passu in right of payment with all other unsecured and unsubordinated
indebtedness of the Company. The Company may issue Debt Securities which are
subordinated in right of payment, in the manner and to the extent described in
the applicable Prospectus Supplement, to all existing and future Senior
Indebtedness (as defined in the applicable Prospectus Supplement).
The Debt Securities to be offered by this Prospectus are limited to
$300,000,000 in aggregate initial public offering price. The Indenture does not
limit the amount of Debt Securities that may be issued thereunder and provides
that Debt Securities may be issued thereunder from time to time in one or more
series. All Debt Securities of one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
any Holder, for issuances of additional Debt Securities of such series. (Section
301) The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities.
Reference is made to the Prospectus Supplement relating to the Offered Debt
Securities for the following terms, where applicable, of the Offered Debt
Securities: (i) the title of the Offered Debt Securities or series of which they
are a part; (ii) the aggregate principal amount of the Offered Debt Securities
and any limit on the aggregate principal amount of the Offered Debt Securities;
(iii) the Person to whom any interest on an Offered Debt Security of that series
shall be payable, if other than the Person in whose name that Offered Debt
Security is registered at the close of business on the Regular Record Date for
such series; (iv) the date or dates (or the method or methods, if any, by which
such date or dates shall be determined) on which the principal of such Offered
Debt Securities will be payable; (v) the price or prices (expressed as a
percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (vi) the rate or rates (which may be fixed, floating
or adjustable), or the method of determination thereof, at which the Offered
Debt Securities will bear interest, if any; the date or dates from which such
interest will accrue; the Interest Payment Dates on which any such interest will
be payable; the Regular Record Date for any such interest payable on any
Interest Payment Date and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months; (vii) the place or
places where the principal of and any premium and interest on such Offered Debt
Securities will be payable; (viii) the period or periods within which, the price
or prices at which, the currency or currencies, currency unit or composite
currency in which, and the other terms and conditions upon which such Offered
Debt Securities may be redeemed, in whole or in part, at
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<PAGE> 11
the option of the Company; (ix) the obligation, if any, of the Company to
redeem, repay or purchase any of such Offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof, and
the period or periods within which, the price or prices at which and the terms
and conditions on which any of such Offered Debt Securities will be redeemed,
repaid or purchased, in whole or in part, pursuant to any such obligation; (x)
the denominations in which such Offered Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof; (xi) if
other than the currency of the United States of America, the currency,
currencies, composite currencies or currency units in which the principal of or
any premium or interest on such Offered Debt Securities will be payable (and the
manner in which the equivalent of the principal amount thereof in the currency
of the United States of America is to be determined for any purpose, including
for the purpose of determining the principal amount deemed to be outstanding at
any time); (xii) if the amount of payments of principal of or any premium or
interest on such Offered Debt Securities may be determined with reference to an
index, pursuant to a formula or pursuant to other methods, the manner in which
such amounts will be determined; (xiii) if the principal of or any premium or
interest on such Offered Debt Securities is to be payable (at the election of
the Company or a Holder thereof) in one or more currencies, composite currencies
or currency units other than those in which the Offered Debt Securities are
stated to be payable, the currency, currencies or currency units in which
payment of any such amount as to which such election is made will be payable,
and the periods within which and the terms and conditions upon which such
election is to be made; (xiv) if other than the principal amount thereof, the
portion of the principal amount of such Offered Debt Securities which will be
payable upon declaration of acceleration of the Maturity thereof pursuant to the
Indenture or, if applicable, the portion of the principal amount of Offered Debt
Securities that is convertible into or exchangeable for other securities of the
Company ("Securities") or the method by which such portion will be determined;
(xv) if applicable, any terms subjecting such Offered Debt Securities to
defeasance or covenant defeasance (as hereinafter defined) different from the
provisions in the Indenture and any limitations on application of the terms of
the Indenture described below under "Defeasance;" (xvi) if applicable, any terms
governing conversion or exchangeability of such Offered Debt Securities into or
for common stock, par value $.01 per share of the Company, (the "Common Stock")
or other Securities and the terms and conditions upon which such conversion or
exchange will be effected; (xvii) any terms regarding the issuance of any
Offered Debt Securities of the series, in whole or in part, in book-entry form
and, if applicable, the depositary for such book-entry securities and the
circumstances, if any, in addition to the circumstances (if applicable)
described below under "Book-Entry Debt Securities," under which any such
book-entry Debt Securities may be registered in the name of a Person other than
such depositary or its nominee; (xviii) provisions, if any, granting special
rights to the Holders of such Offered Debt Securities upon the occurrence of
such events as may be specified; (xix) any addition to, or modification or
deletion of, any Events of Default or covenants provided for with respect to the
Offered Debt Securities; (xx) the terms, if any, pursuant to which the Offered
Debt Securities will be made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness of the Company; and the
definition of any such Senior Indebtedness; (xxi) the application, if any, of
judgments in respect of any specified currency, to the Debt Securities; (xxii)
whether the payment of principal, premium and interest, if any, and other
amounts due under the Indenture, and performance of the Company's other
obligations under the Indenture, will be guaranteed by one or more guarantors,
including subsidiaries of the Company; and (xxiii) any other terms of such
Offered Debt Securities not inconsistent with the provisions of the Indenture.
(Section 301)
Unless otherwise indicated in the Prospectus Supplement relating to Offered
Debt Securities, the principal of, premium, if any, or interest on the Debt
Securities will be payable, and the Debt Securities will be exchangeable and
transfers thereof will be registrable, at the principal office of the Trustee
(see "Concerning the Trustee"), provided that, at the option of the Company,
payment of interest may be made by check mailed to the address of the Person
entitled thereto as it appears in the Security Register or by wire transfer to
an account maintained by the payee located in the United States. (Sections 305
and 1002). Any payment of principal, premium or interest required to be made on
an Interest Payment Date, Redemption Date or at Maturity (as the case may be)
which is not a Business Day may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date, Redemption
Date or at Maturity, as the case may be, and, if such payment is so made, no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Maturity. (Section 113)
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<PAGE> 12
All monies paid by the Company to the Trustee for the payment of principal
of (and premium, if any or interest, if any, on) any Debt Security that remains
unclaimed by the Holder of such Debt Security at the end of two years after such
principal, premium or interest shall become due and payable will be repaid by
the Trustee to the Company on demand, and such Holder will thereafter look only
to the Company for payment thereof. (Section 1003)
Unless otherwise indicated in the Prospectus Supplement relating to Offered
Debt Securities, the Debt Securities will be issued only in fully registered
form, without coupons, in denominations of $1,000 or any integral multiple
thereof. (Section 302). No service charge will be made for any transfer or
exchange of the Debt Securities, but the Company may, subject to certain
exceptions, require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities (as defined below) to be offered and sold at a substantial
discount from their stated principal amount. In addition, under Treasury
Regulations it is possible that Debt Securities which are offered and sold at
their stated principal amount would, under certain circumstances, be treated as
issued at an original issue discount for Federal income tax purposes. Federal
income tax consequences and other special considerations applicable to any such
Original Issue Discount Securities (or other Debt Securities treated as issued
at an original issue discount) will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Security" means a security, including
any security that does not provide for the payment of interest prior to
Maturity, which is issued at a price lower than the principal amount thereof and
which provides that upon redemption or acceleration of the Stated Maturity
thereof an amount less than the principal amount thereof shall become due and
payable. (Section 101) Any special United States tax considerations applicable
to any Debt Securities which are denominated in any currencies, currency units
or composite currencies other than United States dollars will be described in
the applicable Prospectus Supplement.
The Indenture does not contain any provisions which may afford the Holders
of Debt Securities of any series protection in the event of a highly leveraged
transaction or other transaction which may occur in connection with a takeover
attempt resulting in a decline in the credit rating of the Debt Securities. Any
such provisions, if applicable to the Debt Securities of any series, will be
described in the Prospectus Supplement or Prospectus Supplements relating
thereto.
EVENTS OF DEFAULT
Unless otherwise specified in the Prospectus Supplement, the following are
the Events of Default under the Indenture with respect to Debt Securities of any
series: (i) failure to pay principal of or premium, if any, on any Debt Security
of that series when due; (ii) failure to pay any interest on any Debt Security
of that series when due, continued for 30 days; (iii) failure to deposit any
sinking fund payment, when due, in respect of any Debt Security of that series;
(iv) failure to perform or breach of any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture solely for the
benefit of a series of Debt Securities other than that series), continued for 60
days after written notice by the Trustee or Holders of at least 25% of the
principal amount of the Outstanding Debt Securities of that series (as provided
in the Indenture); (v) certain events in bankruptcy, insolvency or
reorganization of the Company or a Significant Subsidiary (as defined in
Regulation S-X under the Securities Act of 1933); (vi) default under any bond,
debenture, note, mortgage, indenture or other instrument under which there may
be issued or by which there may be secured or evidenced any indebtedness for
money borrowed for which the Company or a Significant Subsidiary is directly
responsible or liable as obligor or guarantor, having an aggregate principal
amount outstanding of at least $50,000,000, whether such indebtedness exists on
the date of the Indenture or shall thereafter be created, which default shall
have resulted in such indebtedness being declared due and payable prior to the
date on which it would otherwise have become due and payable, without such
indebtedness being discharged or such acceleration having been rescinded or
annulled; and (vii) any other Event of Default provided with respect to Debt
Securities of that series. (Section 501). Unless otherwise specified herein or
in the Prospectus Supplement, no Event of Default with respect to a particular
series of Debt Securities issued under the Indenture necessarily constitutes an
Event of Default with respect to any other series of Debt Securities issued
thereunder.
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<PAGE> 13
If an Event of Default with respect to Outstanding Debt Securities of any
series shall occur and be continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series may declare the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all the Debt Securities of that series to be due and payable immediately by
written notice to the Company (and to the Trustee, if given by the Holders). If
an Event of Default described in clause (v) above with respect to the Debt
Securities of any series at the time outstanding shall occur, the principal
amount of all the Debt Securities of that series (or, in the case of any such
Original Issue Discount Security or other Debt Security, such specified amount)
will automatically, and without any action by the Trustee or any Holder, become
immediately due and payable. At any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree based on acceleration has been obtained, the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration by written
notice, except a default in the payment of principal, premium or interest and
certain covenants and provisions of the Indenture which cannot be amended
without the consent of the Holder of each outstanding Debt Security of such
series affected. (Section 502). For information as to waiver of defaults, see
"Modification and Waiver."
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence and continuation of an Event of Default.
The Trustee shall, within 90 days after the occurrence of a default with
respect to Debt Securities of any series, give all Holders of Debt Securities of
such series then outstanding notice of all uncured defaults known to it (the
term "default" to mean the events specified above without applicable grace
periods), provided that, except in the case of a default in the payment of
principal of (or any premium or interest on) any Debt Security of any series, or
in the payment of any sinking fund installment with respect to Debt Securities
of any series, the Trustee shall be protected in withholding such notice if it,
in good faith, determines that the withholding of such notice is in the interest
of all Holders of Debt Securities of such series then outstanding. (Trust
Indenture Act Section 315)
The Indenture provides that the Trustee will be under no obligation
(subject to the duty of the Trustee during a default to act with the required
standard of care) to exercise any of its rights or powers under the Indenture at
the request or direction of any of the Holders of the Debt Securities of any
series, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against costs, expense and liabilities which might be
incurred by it in compliance with such request. (Section 601). Subject to such
provisions for indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Debt Securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Debt Securities of that series. (Section 512)
Under the Indenture, the Company will be required to furnish to the Trustee
annually a statement by certain officers of the Company to the effect that, to
the best of their knowledge, the Company is not in default in the fulfillment of
any of its obligations under the Indenture or (if there has been a default in
the fulfillment of any such obligation) specifying such default. (Section 1005)
No Holder of any Debt Securities of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt Securities
of that series, the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of that series
a direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days. (Section 507) However, such limitations do not
apply to a suit
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<PAGE> 14
instituted by a Holder of an Outstanding Debt Security of that series for
enforcement of payment of the principal of, or any premium or interest on, such
Debt Security on or after the respective due dates expressed in such Debt
Security. (Section 508)
COVENANTS
The particular covenants, if any, relating to any series of Debt Securities
will be described in the Prospectus Supplement relating to such series. Unless
otherwise specified in the Prospectus Supplement, the "covenant defeasance"
provisions described below will apply to any such covenants described in the
Prospectus Supplement.
CONSOLIDATION, MERGER AND TRANSFER OF ASSETS
Unless otherwise specified in an applicable Prospectus Supplement, under
the Indenture, without consent of the Holders, the Company may consolidate or
merge with or into any other corporation or entity, and the Company may sell,
lease or convey all or substantially all of its assets to another corporation or
entity, if (i) (a) in the case of a merger, the Company is the surviving company
in the merger, or (b) the entity surviving the merger, formed by such
consolidation or which acquires such assets is an entity organized and existing
under the laws of the United States of America or a state thereof or the
District of Columbia and expressly assumes payment of the principal of (and any
premium and interest on) the Debt Securities and the performance and observance
of all of the covenants and conditions of the Indenture to be performed or
observed by the Company; (ii) immediately thereafter, no Event of Default or
event which, with notice or lapse of time or both, would constitute an Event of
Default shall have occurred and shall be continuing and (iii) certain other
conditions are met. (Article Eight)
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the immediately preceding paragraph in
which the Company is not the surviving company, the successor entity would be
substituted for the Company and the Company would be relieved of any obligations
and covenants under the Indenture and the Debt Securities.
SATISFACTION, DISCHARGE AND DEFEASANCE
Satisfaction and Discharge. Unless otherwise specified in an applicable
Prospectus Supplement, the Indenture, with respect to any series of Debt
Securities (except for certain specified surviving obligations, including (i)
any rights of registration of transfer and exchange and (ii) rights to receive
the principal, premium, if any, and interest, if any, on the Debt Securities)
will be discharged and canceled upon the satisfaction of certain conditions,
including the following: (a) all Debt Securities have been theretofore
authenticated and delivered to the Trustee for cancellation; or (b) (1) all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation have become due or payable, will become due and payable at their
Maturity within one year or are to be called for redemption within one year and
(2) an amount sufficient to pay the principal, premium, if any, and interest, if
any, to the Stated Maturity or Redemption Date, as the case may be, of all Debt
Securities of such series has been deposited with the Trustee. (Section 401)
Defeasance and Covenant Defeasance. Unless so specified in the Prospectus
Supplement with respect to Debt Securities of any series, the Company at its
option: (i) will be discharged from any and all obligations in respect of the
Debt Securities of such series (except for, among other things, certain
obligations to register the transfer or exchange of Debt Securities of such
series; replace stolen, lost or mutilated Debt Securities of such series;
maintain certain offices or agencies in each Place of Payment; and hold moneys
for payment in trust ("defeasance")); or (ii) will not be subject to provisions
of the applicable Indenture described above under "-- Consolidation, Merger and
Transfer of Assets" and certain other restrictive covenants included in the
applicable Prospectus Supplement with respect to the Debt Securities of such
series ("covenant defeasance"), in each case if the Company irrevocably deposits
with the Trustee, in trust, money or U.S. Government Obligations which through
the payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient (in the opinion of a nationally
recognized firm of independent public accountants or investment bank which shall
be delivered to the Trustee) to pay all the
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<PAGE> 15
principal (including any mandatory sinking fund payments) of, and premium, if
any, and interest, if any, on, the Debt Securities of such series on the dates
such payments are due in accordance with the terms of such Debt Securities. To
exercise any such option, the Company is required, among other things, to
deliver to the Trustee (i) an opinion of counsel to the effect that the deposit
and related defeasance or covenant defeasance, as the case may be, will not
cause the Holders of the Debt Securities of such series to recognize income,
gain or loss for Federal income tax purposes and (ii) in the case of defeasance,
a ruling received from or published by the United States Internal Revenue
Service or a change in U.S. income tax law to the effect that the deposit and
related defeasance will not cause the Holders of the Debt Securities of such
series to recognize income, gain or loss for Federal income tax purposes.
(Sections 1402 and 1403)
MODIFICATION AND WAIVER
Unless otherwise specified in an applicable Prospectus Supplement,
modifications and amendments of the Indenture may be made by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of each series affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby: (i) change the Stated Maturity of the principal of or
any installment of principal of or interest on any Debt Security; (ii) reduce
the principal amount of, or any premium or interest on, or the rate of interest
on, any Debt Security; (iii) reduce the amount of principal of an Original Issue
Discount Security or other Debt Security payable upon acceleration of the
Maturity thereof; (iv) change the place or currency of payment of principal of,
or any premium or interest on, any Debt Security; (v) impair the right to
institute suit for the enforcement of any payment on or after the Stated
Maturity thereof (or, in the case of redemption on or after the Redemption Date;
or, in the case of repayment at the option of the Holder, on or after the date
fixed for repayment); (vi) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture; (vii) reduce the
percentage in principal amount of Outstanding Debt Securities of any series, the
consent of whose Holders is required for any waiver (of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences) provided for in the Indenture; or (viii) modify any of the
provisions relating to supplemental indentures, waiver of past defaults or
waiver of certain covenants, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Debt Security
affected thereby. (Section 902)
Unless otherwise specified in an applicable Prospectus Supplement,
modifications and amendments of the Indenture may be made by the Company and the
Trustee without the consent of any Holder of Debt Securities for any of the
following purposes: (i) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
in the Indenture and in the Debt Securities as obligor under the Indenture; (ii)
to add to the covenants of the Company for the benefit of the Holders of all or
any series of Debt Securities or to surrender any right or power conferred upon
the Company in the Indenture; (iii) to add Events of Default; (iv) to add or
change any provisions of the Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Debt Securities in bearer form, registrable
or not registrable as to principal, and with or without interest coupons, or to
permit or facilitate the issuance of Debt Securities in uncertificated form;
provided, that any such change shall not adversely affect the interests of the
Holders of Debt Securities of such series or any other series of Debt Securities
in any material respect; (v) to add to, change or eliminate any of the
provisions of the Indenture in respect of one or more series of Debt Securities,
provided that, any such addition, change or elimination (a) shall neither (1)
apply to any Debt Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (2)
modify the rights of the Holder of any such Debt Security with respect to such
provision or (b) shall become effective only when there is no such Debt Security
outstanding; (vi) to evidence and provide for the acceptance of appointment
under the Indenture by a successor Trustee with respect to the Debt Securities
of one or more series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts under the Indenture by more than one Trustee; (vii) to secure the
Debt Securities; (viii) to supplement any of the provisions of the Indenture to
such extent as shall be necessary to permit or facilitate the defeasance,
covenant defeasance or
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<PAGE> 16
satisfaction and discharge of any series of Debt Securities pursuant to the
Indenture; provided, that any such action shall not adversely affect the
interests of the Holders of Debt Securities of such series or any other series
of Debt Securities in any material respect; (ix) to cure any ambiguity, to
correct or supplement any provision in the Indenture which may be inconsistent
with any other provision in the Indenture or to make any other provisions with
respect to matters or questions arising under the Indenture, provided that such
action shall not adversely affect the interests of the Holders of Debt
Securities of any series in any material respect; (x) to add a guarantor or
guarantors for any or all series of Debt Securities; (xi) to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act; and (xii) to establish the form
or terms of any series of Debt Securities. (Section 901)
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may, on behalf of the Holders of all
Debt Securities of that series, waive any past default under the Indenture with
respect to that series, except a default in the payment of the principal of or
any premium or interest on any Debt Security of that series or in respect of a
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of that series affected.
(Section 513)
CONVERSION OR EXCHANGE RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into or exchangeable for Common Stock or other Securities will be
set forth in the applicable Prospectus Supplement relating thereto. Such terms
will include the conversion price or exchange ratio (or manner of calculation
thereof), the conversion or exchange period, provisions as to whether conversion
or exchange will be at the option of the Holders or the Company, the events
requiring an adjustment of the conversion price or exchange ratio and provisions
affecting conversion or exchange in the event of the redemption of such Debt
Securities.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the law of the State of New York, but without regard to
principles of conflicts of law. (Section 112)
CONCERNING THE TRUSTEE
Norwest Bank Arizona, N.A., with its principal offices at 3300 N. Central
Avenue, Fourth Floor, Phoenix, Arizona, 85012, will act as Trustee for the
benefit of the Holders of the Debt Securities under the Indenture.
BOOK-ENTRY DEBT SECURITIES
Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depository identified in
the applicable Prospectus Supplement. Global Debt Securities may be issued in
either registered or bearer form and in either temporary or permanent form (each
a "Global Security"). Unless otherwise provided in the applicable Prospectus
Supplement, Debt Securities that are represented by a Global Security will be
issued in denominations of $1,000 and any integral multiple thereof, and will be
issued in registered form only, without coupons. Payments of principal of and
any premium and interest on Debt Securities represented by a Global Security
will be made by the Company to the applicable Trustee, and then by such Trustee
to the depository.
The Company anticipates that any Global Securities will be deposited with,
or on behalf of, The Depository Trust Company ("DTC"), New York, New York, that
such Global Securities will be registered in the name of DTC's nominee, and that
the following provisions will apply to the depository arrangements with respect
to any such Global Securities. Additional or differing terms of the depository
arrangement will be described in the applicable prospectus supplement.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole Holder of
the Securities represented by such Global Security for all
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purposes under the Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or Holders thereof under the
Indenture. The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in certificated form; such
laws may limit the transferability of beneficial interests in a Global Security.
If: (i) DTC is at any time unwilling, unable or ineligible to continue as
depository for the Debt Securities of any series and a successor depository is
not appointed by the Company within 90 days following notice to the Company;
(ii) the Company determines, in its sole discretion, not to have the Debt
Securities of any series represented by one or more Global Securities; or (iii)
an Event of Default under the Indenture has occurred and is continuing with
respect to the Debt Securities of any series, then the Company will issue
individual Debt Securities of such series in certificated form in exchange for
the relevant Global Securities. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery of
individual Debt Securities in certificated form of like tenor and rank, equal in
principal amount to such beneficial interest and to have such Debt Securities in
certificated form registered in its name. Unless otherwise provided in the
applicable Prospectus Supplement, Debt Securities so issued in certificated form
will be issued in denominations of $1,000 (or any integral multiple thereof) and
will be issued in registered form only, without coupons.
The following is based on information furnished by DTC:
In the event that DTC acts as securities depository for any Debt
Securities, such Debt Securities will be issued as fully registered
securities registered in the name of Cede & Co. (DTC's partnership
nominee). One fully registered Debt Security certificate will be issued
with respect to each $200 million of principal amount of the Debt
Securities of a series, and an additional certificate will be issued with
respect to any remaining principal amount of such series.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning 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. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC
is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others, such as securities brokers and dealers, banks and
trust companies, that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ("Indirect
Participants"). The rules applicable to DTC and its Participants are on
file with the Commission.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual
purchaser of each Debt Security ("Beneficial Owner") is in turn recorded on
the Direct and Indirect Participants' records. A Beneficial Owner does not
receive written confirmation from DTC of its purchase, but such Beneficial
Owner is expected to receive a written confirmation providing details of
the transaction, as well as periodic statements of its holdings, from the
Direct or Indirect Participant through which such Beneficial Owner entered
into the transaction. Transfers of ownership interests in Debt Securities
are accomplished by entries made on the books of Participants acting on
behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Debt Securities,
except in the limited circumstances described above.
To facilitate subsequent transfers, the Debt Securities are registered
in the name of DTC's partnership nominee, Cede & Co. The deposit of the
Debt Securities with DTC and their registration in
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<PAGE> 18
the name of Cede & Co. effects no change in beneficial ownership. DTC has
no knowledge of the actual Beneficial Owners of the Debt Securities; DTC's
records reflect only the identity of the Direct Participants to whose
accounts Debt Securities are credited, which may or may not be the
Beneficial Owners. The Participants remain responsible for keeping account
of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners are
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Debt Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of interest of each Direct Participant in such
issue to be redeemed.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus
Proxy") to the issuer as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the Debt Securities are credited on
the record date (identified on a list attached to the Omnibus Proxy).
Payments of principal of and any premium and interest on the Debt
Securities will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payment date in accordance with their
respective holdings as shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payment date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC, any Paying
Agent or the Company, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of principal and any premium
and interest, to DTC will be the responsibility of the Company or the
applicable paying agent, disbursement of such payments to Direct
Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
DTC may discontinue providing its services as securities depository
with respect to the Debt Securities at any time by giving reasonable notice
to the Company or the applicable Paying Agent. Under such circumstances, in
the event that a successor securities depository is not appointed, Debt
Securities in certificated form are required to be prepared and delivered
as described above.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that
event, Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable. However, neither the Company nor any underwriter or agent takes any
responsibility for the accuracy thereof.
None of the Company, any underwriter or agent, the applicable Trustee or
any applicable paying agent will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
interests in a Global Security, or for maintaining, supervising or reviewing any
records relating to such beneficial interests.
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<PAGE> 19
DESCRIPTION OF CAPITAL STOCK
GENERAL
Under the Company's Restated Certificate of Incorporation (the "Certificate
of Incorporation"), the total number of shares of all classes of stock that the
Company has authority to issue is 310,000,000 consisting of 10,000,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock"), and
300,000,000 shares of Common Stock. As of March 3, 1998, 102,775,954 shares of
Common Stock were issued and 102,672,370 shares were issued and outstanding
(4,892,845 shares of which were held by an employee equity trust). As part of
the 10,000,000 shares of Preferred Stock authorized, the Company has authorized
and reserved for issuance 1,500,000 shares of Junior Preferred Stock (as defined
herein) in connection with the preferred share purchase rights (the "Rights")
issued by the Company in connection with the Spin-off.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share on all
matters voted on by the stockholders, including the election of directors and,
except as otherwise required by law or provided in any resolution adopted by the
Company's Board of Directors (the "Board") with respect to any series of
Preferred Stock, the holders of such Common Stock exclusively possess all voting
power. The Certificate of Incorporation does not provide for cumulative voting
in the election of directors. Subject to any preferential rights of any
outstanding series of Preferred Stock, the holders of Common Stock are entitled
to such dividends as may be declared from time to time by the Board from funds
available therefor, and upon liquidation are entitled to receive pro rata all
assets of the Company available for distribution to such holders. The Common
Stock does not have any preemptive rights.
The Common Stock is traded on the NYSE under the symbol "DL."
RIGHTS
In connection with the Spin-off, the Company's Board of Directors declared
a dividend of one Right, paid on August 15, 1996 in respect of each share of
Common Stock issued to the holder of record thereof as of the close of business
on such date. To the extent any Debt Securities issued are convertible into
shares of Common Stock, each such share of Common Stock issued in connection
with a conversion will also be accompanied by a Right. Each Right entitles the
registered holder thereof to purchase from the Company one one-hundredth of a
share of Series A Junior Participating Preferred Stock, par value $.01 per share
(the "Junior Preferred Stock"), of the Company at a price of $75.00 per one
one-hundredth of a share (the "Purchase Price"), subject to adjustment. The
terms of the Rights are set forth in the Rights Agreement (the "Rights
Agreement") between the Company and Wells Fargo Bank of Arizona, N.A., as rights
agent.
Until the earlier to occur of (i) ten days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 20% or more of the then
outstanding shares of the Common Stock or (ii) ten business days (or such later
date as may be determined by action of the Board prior to such time as any
person or group becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 20% or more of the outstanding shares of Common Stock (the earlier of
such dates being called the "Rights Distribution Date"), the Rights will be
evidenced by the certificates representing shares of Common Stock.
The Rights Agreement provides that until the Rights Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the shares of Common Stock. As soon as practicable following
the Rights Distribution Date, separate certificates evidencing the Rights
("Rights Certificates") will be mailed to holders of record of the shares of
Common Stock as of the close of business on the Rights Distribution Date and
such separate Rights Certificates alone will evidence the Rights.
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<PAGE> 20
The Rights will not be exercisable until the Rights Distribution Date. The
Rights will expire on August 15, 2006 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of shares of Junior Preferred
Stock or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
shares of Junior Preferred Stock, (ii) upon the grant to holders of the shares
of Junior Preferred Stock of certain rights or warrants to subscribe for or
purchase shares of Junior Preferred Stock at a price, or securities convertible
into shares of Junior Preferred Stock with a conversion price, less than the
then-current market price of the shares of Junior Preferred Stock or (iii) upon
the distribution to holders of the shares of Junior Preferred Stock of evidences
of indebtedness or assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in shares of Junior Preferred
Stock) or of subscription rights or warrants (other than those referred to
above). The number of outstanding Rights and the number of one one-hundredths of
a share of Junior Preferred Stock issuable upon exercise of each Right are also
subject to adjustment in the event of a stock split of Common Stock or a stock
dividend on Common Stock payable in Common Stock or subdivisions, consolidations
or combinations of Common Stock occurring, in any such case, prior to the Rights
Distribution Date.
Shares of Junior Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. Each share of Junior Preferred Stock will be entitled to
a minimum preferential quarterly dividend payment of $1.00 per share but will be
entitled to an aggregate dividend equal to 100 times the dividend declared per
share of Common Stock. In the event of liquidation, the holders of the Junior
Preferred Stock will be entitled to a minimum preferential liquidation payment
of $100 per share but will be entitled to an aggregate payment equal to 100
times the payment made per share of Common Stock. Each share of Junior Preferred
Stock will have 100 votes, and shall be entitled to vote with Common Stock.
Finally, in the event of any merger, consolidation or other transaction in which
Common Stock is exchanged, each share of Junior Preferred Stock will be entitled
to receive an amount equal to 100 times the amount received per share of Common
Stock. These rights are protected by customary antidilution provisions.
Because of the nature of the dividend, liquidation and voting rights of
Junior Preferred Stock, the value of the one one-hundredth interest in a share
of Junior Preferred Stock purchasable upon exercise of each Right should
approximate the value of one share of Common Stock.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, proper provisions will be made so that each holder
of a Right, other than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to receive upon
exercise thereof at the then current exercise price that number of shares of
Common Stock having a market value of two times the exercise price of the Right.
In the event that, at any time on or after the date that any person has become
an Acquiring Person, the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold, proper provisions will be made so that each holder of a Right
will thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction will have a market
value of two times the exercise price of the Right.
At any time after any person or group of affiliated or associated persons
becomes an Acquiring Person and prior to the acquisition by such person or group
of 50% or more of the outstanding shares of Common Stock, the Board may exchange
the Rights (other than Rights owned by such person or group which will have
become void), in whole or in part, at an exchange ratio of one share of Common
Stock, or one one-hundredth of a share of Junior Preferred Stock, per Right
(subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price.
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the outstanding
shares of Common Stock, the Board may redeem the Rights in
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<PAGE> 21
whole, but not in part, at a price of $.01 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Company's Board of Directors in its sole
discretion may establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board without the consent of
the holders of the Rights, including an amendment to lower (i) the threshold at
which a person or group of affiliated or associated persons becomes an Acquiring
Person and (ii) the percentage of Common Stock proposed to be acquired in a
tender or exchange offer that would cause the Rights Distribution Date to occur,
to not less than the greater of (a) the sum of .001% and the largest percentage
of the outstanding shares of Common Stock then known to the Company to be
beneficially owned by any person or group of affiliated or associated persons
and (b) 10%, except that from and after such time as any person or group of
affiliated or associated persons becomes an Acquiring Person no such amendment
may adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. In the event that the Rights become
exercisable, the Company will register the shares of the Junior Preferred Stock
for which the Rights may be exercised, in accordance with applicable law.
The Rights have certain antitakeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
and thereby effect a change in the composition of the Board on terms not
approved by the Board, including by means of a tender offer at a premium to the
market price, other than an offer conditioned on a substantial number of Rights
being acquired. The Rights should not interfere with any merger or business
combination approved by the Board since the Rights may be redeemed by the
Company at the Redemption Price prior to the time that a person or group has
become an Acquiring Person.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through one or more underwriters
or dealers, directly to institutional investors or other purchasers, through
agents, through other methods or through a combination of the foregoing. The
distribution of the Debt 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.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions (including negotiated transactions) at a fixed public
offering price or at varying prices determined at the time of sale. The Debt
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of Debt Securities will be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement, the obligations of the underwriters to purchase the Debt
Securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all the Debt Securities if any are purchased.
The Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent, will be
set forth in the applicable Prospectus Supplement. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment.
In connection with the sale of the Debt Securities, underwriters or agents
may receive compensation from the Company or from purchasers of the Debt
Securities for whom they may act as agents in the form of discounts, concessions
or commissions. Underwriters may sell Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters
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and/or commissions from the purchasers for whom they may act as agents.
Underwriters, dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and commissions,
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation received from the Company will be described, in the
applicable Prospectus Supplement.
If so indicated in the related Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Debt Securities from the
Company at the public offering price set forth in the Prospectus Supplement
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but in all cases
such institutions must be approved by the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Debt 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.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of the Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution by the
Company with respect to payments they may be required to make in respect
thereof.
Certain of the underwriters or agents and their affiliates may engage in
transactions with and perform services for the Company or its affiliates in the
ordinary course of their respective businesses.
If the underwriters create a short position in the Debt Securities in
connection with the offerings (i.e., if they sell more Debt Securities than are
set forth on the cover page of the applicable Prospectus Supplement), the
representatives of the underwriters may reduce that short position by purchasing
Debt Securities in the open market.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. Neither the Company nor any
underwriter or agent makes any representation or prediction as to the direction
or magnitude of any effect that the transactions described above may have on the
price of the Debt Securities. Neither the Company nor any underwriter or agent
makes any representation that the representatives of any underwriters will
engage in such transactions or that such transactions, once commenced, will not
be discontinued without notice.
The Debt Securities may or may not be listed on a national securities
exchange or traded in the over-the-counter market. No assurances can be given as
to the liquidity of the trading market for any such securities.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the Company by
Fried, Frank, Harris, Shriver & Jacobson (a partnership including professional
corporations), New York, New York.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-K for the year ended January 3, 1998 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 88,500
Printing expenses........................................... 340,000
Rating agency fees.......................................... 235,000
Trustee's fees.............................................. 10,500
Legal fees and expenses..................................... 150,000
Accounting expenses......................................... 150,000
Blue Sky fees and expenses.................................. 15,000
Other....................................................... 11,000
----------
Total............................................. $1,000,000
==========
</TABLE>
- ---------------
* Except for the Securities and Exchange Commission registration fee, all of the
foregoing expenses have been estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
CERTAIN PROVISIONS OF CERTIFICATE OF INCORPORATION AND BYLAWS
The Certificate of Incorporation provides that each person who is or was or
had agreed to become a director or officer of the Company, or each such person
who is or was serving or who had agreed to serve at the request of the Company
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise (each "Another Enterprise") (including the heirs,
executors, administrators or estate of such person), will be indemnified by the
Company, in accordance with the Company's Restated Bylaws (the "Bylaws"), to the
fullest extent permitted from time to time by the Delaware General Corporation
Law (the "DGCL"), as the same exists or may hereafter be amended (but, if
permitted by applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment) or any other applicable laws as presently or hereafter in
effect. The Company may, by action of the Board, provide indemnification to
employees and agents of the Company, and to persons serving as employees or
agents of Another Enterprise, at the request of the Company, with the same scope
and effect as the foregoing indemnification of directors and officers. The
Company shall be required to indemnify any 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 Board or is a proceeding
to enforce such person's claim to indemnification pursuant to the rights granted
by the Certificate of Incorporation or otherwise by the Company. In addition,
pursuant to the Certificate of Incorporation, the Company has entered into
agreements with certain persons providing for indemnification greater or
different than that provided in the Certificate of Incorporation. See
"-- Indemnification Agreements."
The Bylaws 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 or officer of the Company
or is or was serving at the request of the Company as a director or officer of
another corporation or of Another 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 or officer or in any other capacity while
serving as a director or officer, will be indemnified and held harmless by the
Company to the fullest extent authorized by the DGCL as the same exists or may
in the future be amended (but, if permitted by applicable law, in the case of
any such amendment, only to the extent that such amendment permits the Company
to provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, Employee Retirement Income
Security Act of 1974, as amended, excise taxes or penalties and amounts
II-1
<PAGE> 24
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification will continue as to a person
who has ceased to be a director or officer and will inure to the benefit of his
or her heirs, executors and administrators; provided, however, except as
described in the second following paragraph with respect to Proceedings to
enforce rights to indemnification, the Company 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 Board.
Pursuant to the Bylaws, to obtain indemnification, a claimant is to submit
to the Company a written request for indemnification. Upon such written request
by a claimant, a determination, if required by applicable law, with respect to
the claimant's entitlement to indemnification will be made, (i) if requested by
the claimant, by independent legal counsel, or (ii) if the claimant does not so
request, by the Board (a) by a majority vote of the disinterested directors even
though less than a quorum, (b) if there are no disinterested directors or the
disinterested directors so direct, by independent legal counsel in a written
opinion to the Board, or (c) if the disinterested directors so direct, by the
stockholders of the Company. In the event the determination of entitlement to
indemnification is to be made by independent legal counsel at the request of the
claimant, the independent legal counsel will be selected by the Board unless
there shall have occurred within two years prior to the date of the commencement
of the action, suit or proceeding for which indemnification is claimed a "Change
in Control" (as defined in the Company's 1996 Stock Incentive Plan), in which
case the independent counsel shall be selected by the claimant unless the
claimant requests that such selection be made by the Board.
Pursuant to the Bylaws, if a claim for indemnification is not paid in full
by the Company within 30 days after a written claim for indemnification has been
received by the Company, the claimant may at any time thereafter bring suit
against the Company 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 Bylaws 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 the Company)
that the claimant has not met the standard of conduct which make it permissible
under the DGCL for the Company to indemnify the claimant for the amount claimed,
but the burden of proving such defense will be on the Company. Neither the
failure of the Company (including, without limitation, the disinterested
directors, 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 standards in the DGCL, nor an actual determination by the Company
(including the disinterested directors, 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 in the DGCL. However, the Company
will be bound by a determination pursuant to the procedures set forth in the
Bylaws that the claimant is entitled to indemnification in any judicial
proceeding commenced pursuant to the Bylaws.
The Bylaws 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 Bylaws 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 Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise. The Bylaws permit the Company to maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Company or Another Enterprise against any expense, liability or
loss, whether or not the Company would have the power to indemnify such person
against such expense, liability or loss under the DGCL. The Company has obtained
directors' and officers' liability insurance providing coverage to its directors
and officers. In addition, the Bylaws authorize the Company, to the extent
authorized from time to time by the Board, to grant rights to indemnification
and rights to be paid by the Company for the expenses incurred in defending any
Proceeding in advance of its final disposition, to any employee or agent of the
Company to the fullest extent of the provisions of the Bylaws with respect to
the indemnification and advancement of expenses of directors and officers of the
Company.
The Bylaws provide that the right to indemnification conferred therein is a
contract right and includes the right to be paid by the Company for the expenses
incurred in defending any Proceeding in advance of its final
II-2
<PAGE> 25
disposition, except that if the DGCL requires, the payment of such expenses
incurred by a director or officer in his or her capacity as 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 the Company 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 Bylaws or otherwise.
FIDUCIARY DUTIES
The Certificate of Incorporation provides that a director of the Company
will not be personally liable to the Company 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 the Company 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,
which concerns unlawful payments of dividends, stock purchases or redemptions or
(iv) for any transaction from which the director derived an improper personal
benefit.
While the Certificate of Incorporation provides directors with protection
from awards for monetary damages for breaches of their duty of care, it does not
eliminate such duty. Accordingly, the Certificate of Incorporation will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of his or her duty of care.
INDEMNIFICATION AGREEMENTS
The Company is party to indemnification agreements with each of its
directors and certain of its officers (each, an "Indemnification Agreement,"
and, collectively, the "Indemnification Agreements"). The Indemnification
Agreements, among other things, require the Company to indemnify the directors
and such officers to the fullest extent permitted by law, and to advance to the
directors all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. The Company must also
indemnify and advance all expenses incurred by directors seeking to enforce
their rights under the Indemnification Agreements, and cover directors and such
officers under the Company's directors' and officers' liability insurance.
Although the Indemnification Agreements will offer substantially the same scope
of coverage afforded by provisions in the Certificate of Incorporation and the
Bylaws, they provide greater assurance to directors and officers that
indemnification will be available, because, as contracts, they cannot be
modified unilaterally in the future by the Board or by the stockholders to
eliminate the rights provided, an action that is possible with respect to the
relevant provisions of the Bylaws, at least as to prospective elimination of
such rights.
There has not been in the past and there is not presently pending any
litigation or proceeding involving a director, officer, employee or agent of the
Company in which indemnification would be required or permitted by the
Indemnification Agreements. In addition, the Board is not aware of any
threatened litigation or proceeding which may result in a claim for
indemnification under any Indemnification Agreement.
The DGCL provides that a contract between a corporation and a director
thereof is not void or voidable solely because the interested director is
present at the meeting authorizing the contract if the material facts relating
to the contract are known to the board of directors and the board of directors
in good faith authorizes the contract by the affirmative vote of a majority of
the disinterested directors, or the material facts relating to the contract are
known to the stockholders and the stockholders in good faith authorize the
contract, or the contract is fair to the corporation at the time it is
authorized or approved.
STATE LAW PROVISIONS
The Company is incorporated under the laws of the State of Delaware.
Section 145(a) of the DGCL provides that a Delaware corporation may indemnify
any person who was, is or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of such
II-3
<PAGE> 26
corporation as a director, officer, employee or agent of Another Enterprise. The
indemnity may include expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was, is or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorney's fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit, provided such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification is permitted
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine that despite the
adjudication of liability, such person is fairly and reasonably entitled to be
indemnified for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections 145(a) and 145(b) or in the defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses actually and reasonably incurred in connection therewith; that
indemnification provided for by Section 145 of the DGCL shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him or incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145 of the DGCL.
UNDERWRITING AGREEMENTS
The form of Underwriting Agreement filed as Exhibit 1.1 hereto provides for
the indemnification of the Company, its controlling persons, its directors and
certain of its officers by the underwriters of any offering pursuant to the
Registration Statement against certain liabilities, including liabilities under
the Securities Act.
ITEM 16. EXHIBITS
Set forth below is a list of the exhibits included as part of this
Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(a) to the Company's
Form 10, dated July 30, 1996 (File No. 001-11733)).
3.2 Restated Bylaws of the Company (incorporated by reference to
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the year ended January 3, 1998).
4.1 Form of Indenture relating to the Debt Securities.
4.2 Rights Agreement (incorporated by reference to Exhibit 4 to
the Company's Form 10, dated July 30, 1996 (File No.
001-11733)).
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to
the validity of the securities being registered.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).
</TABLE>
II-4
<PAGE> 27
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
23.2 Consent of Deloitte & Touche LLP.
24.1 Powers of Attorney (included on signature pages).
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of Norwest Bank Arizona, N.A
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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) under the Securities Act of
1933 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;
provided, however, that the undertakings set forth in paragraphs (1)(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 the registrant 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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
II-5
<PAGE> 28
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the questions 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-6
<PAGE> 29
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, The
Dial Corporation has certified 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 Scottsdale and the State of Arizona, on March 4,
1998.
THE DIAL CORPORATION
By: /s/ MALCOLM JOZOFF
------------------------------------
Malcolm Jozoff
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose signatures
appear below, constitute and appoint Malcolm Jozoff and Susan J. Riley, and each
of them, as their true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for them and in their names, places, and
steads, in any and all capacities, to sign the Registration Statement on Form
S-3 to be filed in connection with the offering of debt securities of The Dial
Corporation and any and all amendments (including post-effective amendments) to
the Registration Statement, and any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as they might or could do in person,
thereby ratifying and confirming all that said attorney-in-fact and agent, or
any of them, or their or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ MALCOLM JOZOFF Chairman of the Board, President and March 4, 1998
- ------------------------------------------ Chief Executive Officer (Principal
Malcolm Jozoff Executive Officer)
/s/ SUSAN J. RILEY Senior Vice President -- Finance and March 4, 1998
- ------------------------------------------ Chief Financial Officer (Principal
Susan J. Riley Financial Officer and Principal
Accounting Officer)
/s/ JOY A. AMUNDSON Director March 4, 1998
- ------------------------------------------
Joy A. Amundson
/s/ HERBERT M. BAUM Director March 4, 1998
- ------------------------------------------
Herbert M. Baum
/s/ JOE T. FORD Director March 4, 1998
- ------------------------------------------
Joe T. Ford
</TABLE>
II-7
<PAGE> 30
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ THOMAS L. GOSSAGE Director March 4, 1998
- ------------------------------------------
Thomas L. Gossage
/s/ DONALD E. GUINN Director March 4, 1998
- ------------------------------------------
Donald E. Guinn
/s/ MICHAEL T. RIORDAN Director March 4, 1998
- ------------------------------------------
Michael T. Riordan
/s/ DENNIS C. STANFILL Director March 4, 1998
- ------------------------------------------
Dennis C. Stanfill
/s/ BARBARA S. THOMAS Director March 4, 1998
- ------------------------------------------
Barbara S. Thomas
/s/ A. THOMAS YOUNG Director March 4, 1998
- ------------------------------------------
A. Thomas Young
</TABLE>
II-8
<PAGE> 31
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(a) to the Company's
Form 10, dated July 30, 1996 (File No. 001-11733)).
3.2 Restated Bylaws of the Company (incorporated by reference to
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the year ended January 3, 1998).
4.1 Form of Indenture relating to the Debt Securities.
4.2 Rights Agreement (incorporated by reference to Exhibit 4 to
the Company's Form 10, dated July 30, 1996 (File No.
001-11733)).
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson as to
the validity of the securities being registered.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Powers of Attorney (included on signature pages).
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of Norwest Bank Arizona, N.A.
</TABLE>
<PAGE> 1
EXHIBIT 1.1
================================================================================
THE DIAL CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
Dated: __________ __, ____
================================================================================
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
UNDERWRITING AGREEMENT............................................................................................1
SECTION 1. Representations and Warranties........................................................................2
(a) Representations and Warranties by the Company..............................................................2
(i) Compliance with Registration Requirements............................................................2
(ii) Incorporated Documents..............................................................................3
(iii) Independent Accountants............................................................................4
(iv) Financial Statements................................................................................4
(v) No Material Adverse Change in Business...............................................................4
(vi) Good Standing of the Company........................................................................4
(vii) Subsidiaries.......................................................................................5
(viii) Capitalization....................................................................................5
(ix) Authorization of Agreement..........................................................................5
(x) Authorization of the Indenture.......................................................................5
(xi) Authorization of the Securities.....................................................................5
(xii) Description of the Securities and the Indenture....................................................6
(xiii) Absence of Defaults and Conflicts.................................................................6
(xiv) Absence of Proceedings.............................................................................7
(xv) Accuracy of Exhibits................................................................................7
(xvi) Absence of Further Requirements....................................................................7
(xvii) Possession of Licenses and Permits................................................................7
(xviii) Environmental Laws...............................................................................8
(xix) Investment Company Act.............................................................................8
(b) Officer's Certificates.....................................................................................8
SECTION 2. Sale and Delivery to Underwriters; Closing.............................................................9
(a) Securities.................................................................................................9
(b) Payment....................................................................................................9
(c) Denominations; Registration................................................................................9
SECTION 3. Covenants of the Company...............................................................................9
(a) Compliance with Securities Regulations and Commission Requests.............................................9
(b) Filing of Amendments......................................................................................10
(c) Delivery of Registration Statements.......................................................................10
(d) Delivery of Prospectuses..................................................................................10
(e) Continued Compliance with Securities Laws.................................................................11
(f) Blue Sky Qualification....................................................................................11
- i -
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
(g) Rule 158..................................................................................................12
(h) Reporting Requirements....................................................................................12
(i) Use of Proceeds...........................................................................................12
SECTION 4. Payment of Expenses...................................................................................12
(a) Expenses..................................................................................................12
(b) Termination of Agreement..................................................................................12
SECTION 5. Conditions of Underwriters' Obligations...............................................................13
(a) Effectiveness of Registration Statement...................................................................13
(b) Opinion of Counsel for Company............................................................................13
(c) Opinion of Counsel for Underwriters.......................................................................14
(d) Officers' Certificate.....................................................................................14
(e) Accountants' Comfort Letter...............................................................................14
(f) Bring-down Comfort Letter.................................................................................15
(g) Maintenance of Rating.....................................................................................15
[(h) No Objection.............................................................................................15
(i) Additional Documents......................................................................................15
(j) Termination of Agreement..................................................................................15
SECTION 6. Indemnification.......................................................................................16
(a) Indemnification of Underwriters...........................................................................16
(b) Indemnification of Company, Directors and Officers........................................................17
(c) Actions against Parties; Notification.....................................................................17
SECTION 7. Contribution..........................................................................................18
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................................20
SECTION 9. Termination of Agreement..............................................................................20
(a) Termination; General......................................................................................20
(b) Liabilities...............................................................................................20
SECTION 10. Default by One or More of the Underwriters..........................................................20
SECTION 11. Notices.............................................................................................21
SECTION 12. Parties.............................................................................................21
SECTION 13. GOVERNING LAW AND TIME..............................................................................22
- ii -
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
SECTION 14. Effect of Headings..................................................................................22
SCHEDULES
Schedule A - List of Underwriters............................................................. Sch A-1
Schedule B - Pricing Information.............................................................. Sch B-1
Schedule C - List of Subsidiaries............................................................. Sch C-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Company's Counsel............................................ A1-1
Exhibit A-2 - Form of Opinion of Company's In-House Counsel................................... A2-1
Exhibit B - Form of Lock-up Letter............................................................ B-1
ANNEXES
Annex A - Form of Accountants' Comfort Letter................................................. Annex A-1
- iii -
</TABLE>
<PAGE> 5
The Dial Corporation
(a Delaware corporation)
[Title of Debt Securities]
UNDERWRITING AGREEMENT
---------- --, ----
[Name(S) of Managing Underwriter(s)]
[Address(es) of Managing Underwriter(s)]
Ladies and Gentlemen:
The Dial Corporation, a Delaware corporation (the "Company"), confirms
its agreement with [Names of Managing Underwriter(s)] and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom [Name of Managing Underwriter(s)], are acting as
representative(s) (in such capacity, the "Representative"), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the $____________ aggregate principal amount of
the Company's [title of Debt Securities] (the "Securities"). The Securities are
to be issued pursuant to an indenture dated as of __________ __, ____ between
the Company and Norwest Bank, N.A., as trustee (the "Trustee") as amended and
supplemented by the Supplemental Indenture dated as of __________ __, ____
between the Company and the Trustee (collectively, the "Indenture").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_______), including
the related preliminary prospectus or prospectuses, covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). As provided in Section 3(a), a prospectus supplement relating to
the Securities, the terms of the offering thereof and the other matters set
forth therein has been prepared and will be filed pursuant to Rule 424 of the
1933 Act Regulations. Such prospectus supplement, in the form first filed after
the date hereof pursuant to Rule 424, is herein referred to as the
- 1 -
<PAGE> 6
"Prospectus Supplement." The prospectus included in the Registration Statement
relating to all offerings of Securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the "Prospectus;"
provided, however, that, if the Prospectus is amended or supplemented on or
after the date hereof but prior to the date on which the Prospectus Supplement
is first filed pursuant to Rule 424, the term "Prospectus" shall refer to the
Prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplement; and provided, further, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"); and provided, further, that if the Company
files a registration statement with the Commission pursuant to Rule 462(b) of
the 1933 Act Regulations (the "Rule 462(b) Registration Statement"), then, after
such filing, all references to the "Registration Statement" shall also be deemed
to include the Rule 462(b) Registration Statement. The Prospectus used before
such registration statement became effective, and any Prospectus that was used
after such effectiveness and prior to the execution and delivery of this
Agreement is herein called a "preliminary prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus, or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1. Representations and Warranties
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof and agrees with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration
- 2 -
<PAGE> 7
Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and did not and will not contain
an 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. Neither the Prospectus nor any amendments or
supplements thereto, at the time such Prospectus or any amendments or
supplements thereto was issued and at the Closing Time included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Underwriter
through the Representative expressly for use in the Registration
Statement or the Prospectus.
Each preliminary prospectus and the 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 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus when they became effective or, at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus were issued and at the
Closing Time,
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<PAGE> 8
did not and will not contain an 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) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus presents fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regularly paid quarterly dividends
disclosed in the Company's publicly filed periodic reports or otherwise
publicly disclosed, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in
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good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(vii) Subsidiaries. The only subsidiaries of the Company are
(a) the subsidiaries listed on Schedule C hereto and (b) certain other
subsidiaries which, considered in the aggregate as a single Subsidiary,
do not constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. The Company has no "significant subsidiaries" (as such
term is defined in Rule 1-02 of Regulation S-X).
(viii) Capitalization. The Company had at the date indicated
in the Prospectus a duly authorized and outstanding capitalization as
set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
this Agreement pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus).
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and duly qualified under the 1939 Act.
The Indenture as executed is or will be substantially in the form filed
as an exhibit to the Registration Statement. The Indenture, when duly
executed and delivered by the Company and the Trustee will constitute a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have been
duly authorized and, at the Closing Time, will have been duly executed
by the Company and, when authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of
the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless
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<PAGE> 10
of whether enforcement is considered in a proceeding in equity or at
law), and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated in
this Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement, the Indenture and the Securities have
been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary or any
existing applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations (except for
such violations of laws, statutes, rules, regulations, judgments,
orders, writs or decrees that would not result in a Material Adverse
Effect). As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
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<PAGE> 11
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such as
have been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations and state securities or blue sky laws and
except for the qualification of the Indenture under the 1939 Act.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or
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<PAGE> 12
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xviii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to the Underwriters or to
counsel for the Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
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<PAGE> 13
SECTION 2. Sale and Delivery to Underwriters; Closing
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, aggregate principal amount of Securities set
forth in Schedule A opposite the name of such Underwriter, plus any additional
principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of
_______________________________, or at such other place as shall be agreed upon
by the Underwriters and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. __________, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations ($1,000 or integral multiples thereof) and registered
in such names as the Representative may request in writing at least one full
business day before the Closing Time. The certificates for the Securities will
be made available for examination and packaging by the Representative in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
and
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<PAGE> 14
will notify the Representative immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering in sale in any jurisdiction or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to any prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Representative with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters shall promptly and
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts. The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or
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<PAGE> 15
supplemented) as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time any such
Prospectus is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters reasonably request.
(f) Blue Sky Qualification. The Company will use its best efforts in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representative may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement. The Company will also supply the Underwriters
with such information as is necessary for the determination of the legality of
the Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
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<PAGE> 16
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(i) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities substantially in the manner specified in the
Prospectus under "Use of Proceeds".
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, copying and delivery to the Underwriters of this
Agreement, any Agreement Among Underwriters, the Indentures and such other
documents as may be required in connection with the offering, purchase, sale or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
filing fees incident to any necessary filings under state securities laws and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (ix) any fees payable in connection with the
rating of the Securities, [and] (x) if applicable, the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities].
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
the information included in a prospectus prepared and filed pursuant to
the provisions of Rule 430A of the 1933 Act Regulations shall have been
filed with the Commission in accordance with Rule 424(b) (the
information included in a prospectus prepared and filed pursuant to the
provisions of Rule 424(b) is hereinafter referred to as the "424(b)
Information") of the 1933 Act Regulations (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) Opinion of Counsel for Company. (i) At the Closing Time,
the Representative shall have received the favorable opinion, dated as
of the Closing Time, of Fried, Frank, Harris, Shriver & Jacobson (a
partnership including professional corporations), counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit
A-1 hereto and to such further effect as counsel to the Underwriters
may reasonably request.
(ii) At the Closing Time, the Representative shall
have received the favorable opinion, dated as of Closing Time,
of the General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the
other Underwriters to the effect set forth in Exhibit A-2
hereto and to such further effect as counsel to the
Underwriters may reasonably request. In giving such opinion
such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York,
the federal law of the United States and the General
Corporation law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representative. Such counsel may
also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper,
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<PAGE> 18
upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At the Closing Time,
the Representative shall have received the favorable opinion, dated as
of Closing Time, of ____________, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters. In giving such opinion such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and
the General Corporation law of the State of Delaware, upon the opinions
of counsel satisfactory to the Representative. Such counsel may also
state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At the Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representative shall have
received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of the Closing
Time, (iii) the Company has complied with all agreements and satisfied
all conditions in all material respects on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or to
the Company's knowledge are pending or are threatened by the
Commission.
(e) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Representative shall have received from Deloitte
& Touche LLP a letter dated such date, in form and substance
satisfactory to the Representative, together with signed or reproduced
copies of such letter for each of the other Underwriters 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 the
Registration Statement and the Prospectus.
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<PAGE> 19
(f) Bring-down Comfort Letter. At the Closing Time, the
Representative shall have received from Deloitte & Touche LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to shall be a
date not more than three business days prior to the Closing Time.
(g) Maintenance of Rating. At the Closing Time, the Securities
shall be rated at least o by Moody's Investors Service Inc. and o by
Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., and
the Company shall have delivered to the Representative a letter dated
as of the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Securities have
such ratings; and since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to the Securities or
any of the Company's other debt securities by any "nationally
recognized statistical rating agency", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no
such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the
Company's other debt securities.
[(h) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.]1
(i) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Representative and counsel for the
Underwriters.
(j) Termination of Agreement.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by the Representative by notice to the Company at
any time at or prior to Closing Time and such termination shall be
without liability of any party to any other party except as provided
in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
- ------------------
1 Include if an NASD filing is required.
- 15 -
<PAGE> 20
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 424(b) Information or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided, further, that the Company will not be liable to any
Underwriter or any person controlling such
- 16 -
<PAGE> 21
Underwriter with respect to any such untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus to
the extent that the Company shall sustain the burden of proving that any such
loss, liability, claim, damage or expense resulted from the fact that such
Underwriter, in contravention of a requirement of applicable law, sold
securities to a person to whom such Underwriter failed to send or give, at or
prior to the written confirmation of the sale of such Securities, a copy of the
Prospectus (as amended or supplemented excluding documents incorporated by
reference) if (i) the Company has previously furnished copies thereof
(sufficiently in advance of the Closing Date to allow for distribution of the
Prospectus in a timely manner) to the Underwriter and the loss, liability,
claim, damage or expense of such Underwriter resulted from an untrue statement
or omission or alleged untrue statement or omission of a material fact contained
in or omitted from such preliminary prospectus which was corrected in the
Prospectus (excluding the documents incorporated by reference) and (ii) the
giving or sending of such Prospectus (excluding the documents incorporated by
reference) by the Closing Date to the party or parties asserting such loss,
liability, claim or damage or expense would have constituted the sole defense to
the claim asserted by such person.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representative expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that
- 17 -
<PAGE> 22
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the
- 18 -
<PAGE> 23
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 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 which does not take account of the
equitable considerations referred to above in this Section. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls a
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section are several in
proportion to the aggregate principal amount of Securities set forth opposite
their respective names in Schedule A hereto and not joint.
- 19 -
<PAGE> 24
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the non-defaulting Underwriters shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the non-
- 20 -
<PAGE> 25
defaulting Underwriters shall not have completed such arrangements within such
24-hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be
purchased hereunder, the non-defaulting Underwriters shall be
obligated, each severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for a Underwriter under this Section.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at [address of the
Representative], attention of ____________; and notices to the Company shall be
directed to it at 15501 North Dial Boulevard, Scottsdale, Arizona 85260-1619,
attention of Jane E. Owens, Senior Vice President and General Counsel.
SECTION 12.
Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representative, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling
- 21 -
<PAGE> 26
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. 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.
- 22 -
<PAGE> 27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
THE DIAL CORPORATION
By____________________________
Title:
CONFIRMED AND ACCEPTED,
AS OF THE DATE FIRST ABOVE WRITTEN:
[Name(s) of Managing Underwriter(s)]
By:_______________________________________________
Authorized Signatory
For themselves and as Representative of the other Underwriters named in Schedule
A hereto.
- 23 -
<PAGE> 28
SCHEDULE A
<TABLE>
<CAPTION>
Name of Underwriter Aggregate Principal
Amount of
Securities
<S> <C>
[Name(s) of Underwriter(s)] ............................................................ ___________________
Total................................................................................... ===================
</TABLE>
Sch A-1
<PAGE> 29
SCHEDULE B
THE DIAL CORPORATION
[Title of Debt Securities]
1. The initial public offering price of the Securities shall be __% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be __% of the principal amount thereof.
3. The interest rate on the Securities shall be __% per annum.
4. [INCLUDE THE TERMS OF ANY OPTIONAL OR MANDATORY REDEMPTION AND OTHER
PRICE-RELATED TERMS.]
Sch B-1
<PAGE> 30
SCHEDULE C
SUBSIDIARIES
[Names of Subsidiaries]
Sch C-1
<PAGE> 1
EXHIBIT 4.1
THE DIAL CORPORATION, as Issuer
and
Norwest Bank Arizona, N.A., as Trustee
INDENTURE
Dated as of March , 1998
<PAGE> 2
THE DIAL CORPORATION
Reconciliation and tie between Trust Indenture Act of
1939 and the Indenture, dated as of March __, 1998:
Trust Indenture Act Section Indenture Section
Section 310(a)(1) ..................................... 609
(a)(2).......................................... 609
(a)(3).......................................... Not Applicable
(a)(4).......................................... Not Applicable
(a)(5).......................................... 609
(b)............................................. 608, 610
Section 311(a) ........................................ 610, 613
(b)............................................. 613
(c)............................................. Not Applicable
Section 312(a) ........................................ 701, 702(a)
(b)............................................. 702(b)
(c)............................................. 702(c)
Section 313(a) ........................................ 703(a)
(b)............................................. 703(a)
(c)............................................. 703(a), 602
(d)............................................. 703(b)
Section 314(a) ........................................ 704
(a)(4).......................................... 101,1005
(b)............................................. Not Applicable
(c)(1).......................................... 102
(c)(2).......................................... 102
(c)(3).......................................... Not Applicable
(d)............................................. Not Applicable
(e)............................................. 102
Section 315(a) ........................................ 0601
(b)............................................. 602
(c)............................................. 601
(d)............................................. 601, 603
(e)............................................. 514
Section 316(a)(last sentence) ......................... 101
(a)(1)(A)....................................... 502, 512
(a)(1)(B)....................................... 513
(a)(2).......................................... Not Applicable
<PAGE> 3
Trust Indenture Act Section Indenture Section
(b)............................................. 508
(c)............................................. 104(c)
Section 317(a)(1) ..................................... 503
(a)(2).......................................... 504
(b)............................................. 1003
Section 318(a) ........................................ 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
Page
PARTIES............................................ 1
RECITALS OF THE COMPANY............................ 1
ARTICLE ONE
<TABLE>
<CAPTION>
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C>
Section 101. Definitions .............................................................. 1
"Act" ................................................................................. 2
"Additional Amounts" .................................................................. 2
"Affiliate" ........................................................................... 2
"Authenticating Agent" ................................................................ 2
"Authorized Newspaper" ................................................................ 2
"Bearer Security" ..................................................................... 3
"Board of Directors" .................................................................. 3
"Board Resolution" .................................................................... 3
"Book-Entry Security" ................................................................. 3
"Business Day" ........................................................................ 3
"Commission" .......................................................................... 3
"Common Stock" ........................................................................ 3
"Company" ............................................................................. 3
"Company Request" or "Company Order" .................................................. 3
"Conversion Event" .................................................................... 4
"Corporate Trust Office" .............................................................. 4
"corporation" ......................................................................... 4
"Coupon" .............................................................................. 4
"Currency" ............................................................................ 4
"CUSIP number" ........................................................................ 4
"Defaulted Interest" .................................................................. 4
"Depositary" .......................................................................... 4
"Dollars" or "$" ...................................................................... 4
"ECU" ................................................................................. 5
"Event of Default" .................................................................... 5
"Exchange Act" ........................................................................ 5
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
"Foreign Currency" .................................................................... 5
"Government Obligations" .............................................................. 5
"Holder" .............................................................................. 5
"Indenture" ........................................................................... 5
"Indexed Security" .................................................................... 6
"interest" ............................................................................ 6
"Interest Payment Date" ............................................................... 6
"Legal Holidays" ...................................................................... 6
"Maturity" ............................................................................ 6
"Office or Agency" .................................................................... 6
"Officers' Certificate"................................................................ 6
"Opinion of Counsel"................................................................... 6
"Original Issue Discount Security"..................................................... 6
"Outstanding".......................................................................... 7
"Paying Agent"......................................................................... 8
"Person"............................................................................... 8
"Place of Payment"..................................................................... 8
"Predecessor Security"................................................................. 8
"Preferred Stock"...................................................................... 8
"Repayment Date"....................................................................... 9
"Repayment Price"...................................................................... 9
"Redemption Date"...................................................................... 9
"Redemption Price"..................................................................... 9
"Registered Security".................................................................. 9
"Regular Record Date".................................................................. 9
"Responsible Officer".................................................................. 9
"Security"............................................................................. 9
"Security Register".................................................................... 9
"Senior Indebtedness".................................................................. 10
"Significant Subsidiary"............................................................... 10
"Special Record Date".................................................................. 10
"Stated Maturity"...................................................................... 10
"Subordinated Securities".............................................................. 10
"Subsidiary"........................................................................... 10
"Trustee".............................................................................. 10
"Trust Indenture Act".................................................................. 11
"United States"........................................................................ 11
"United States Person"................................................................. 11
Section 102. Compliance Certificates and Opinions...................................... 11
Section 103. Form of Documents Delivered to Trustee.................................... 12
Section 104. Acts of Holders; Record Dates............................................. 12
Section 105. Notices, Etc., to Trustee and Company..................................... 14
Section 106. Notice to Holders; Waiver................................................. 15
Section 107. Conflict with Trust Indenture Act......................................... 16
</TABLE>
- ii -
<PAGE> 6
<TABLE>
<S> <C>
Section 108. Effect of Headings and Table of Contents.................................. 16
Section 109. Successors and Assigns.................................................... 16
Section 110. Separability Clause....................................................... 16
Section 111. Benefits of Indenture..................................................... 16
Section 112. Governing Law............................................................. 17
Section 113. Legal Holidays............................................................ 17
Section 114. Immunity of Stockholders, Directors, Officers and Agents of the Company... 17
</TABLE>
ARTICLE TWO
SECURITY FORMS
<TABLE>
<S> <C>
Section 201. Forms of Securities........................................................ 18
Section 202. Securities in Book-Entry Form.............................................. 18
Section 203. Form of Legend for Book-Entry Securities................................... 19
Section 204. Form of Trustee's Certificate of Authentication............................ 20
</TABLE>
ARTICLE THREE
THE SECURITIES
<TABLE>
<S> <C>
Section 301. Amount Unlimited; Issuable in Series....................................... 20
Section 302. Currency; Denominations.................................................... 25
Section 303. Execution, Authentication, Delivery and Dating............................. 25
Section 304. Temporary Securities....................................................... 27
Section 305. Registration, Registration of Transfer and Exchange........................ 28
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........................... 33
Section 307. Payment of Interest; Interest Rights Preserved............................. 34
Section 308. Persons Deemed Owners...................................................... 36
Section 309. Cancellation............................................................... 37
Section 310. Computation of Interest.................................................... 37
</TABLE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C>
Section 401. Satisfaction and Discharge of Indenture.................................... 37
Section 402. Application of Trust Money................................................. 39
</TABLE>
- iii -
<PAGE> 7
ARTICLE FIVE
REMEDIES
<TABLE>
<S> <C>
Section 501. Events of Default.......................................................... 40
Section 502. Acceleration of Maturity; Rescission and Annulment......................... 41
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee........... 43
Section 504. Trustee May File Proofs of Claim........................................... 44
Section 505. Trustee May Enforce Claims Without Possession of Securities................ 44
Section 506. Application of Money Collected............................................. 45
Section 507. Limitation on Suits........................................................ 45
Section 508. Unconditional Right of Holders to Receive Principal, Premium, if any,
and Interest and Additional Amounts, if any............................... 46
Section 509. Restoration of Rights and Remedies......................................... 46
Section 510. Rights and Remedies Cumulative............................................. 46
Section 511. Delay or Omission Not Waiver............................................... 47
Section 512. Control by Holders......................................................... 47
Section 513. Waiver of Past Defaults.................................................... 47
Section 514. Undertaking for Costs...................................................... 48
Section 515. Waiver of Usury, Stay or Extension Laws.................................... 48
</TABLE>
ARTICLE SIX
<TABLE>
<S> <C>
Section 601. Certain Duties and Responsibilities........................................ 49
Section 602. Notice of Defaults......................................................... 49
Section 603. Certain Rights of Trustee.................................................. 50
Section 604. Not Responsible for Recitals or Issuance of Securities..................... 51
Section 605. May Hold Securities........................................................ 52
Section 606. Money Held in Trust........................................................ 52
Section 607. Compensation and Reimbursement............................................. 52
Section 608. Disqualification; Conflicting Interests.................................... 53
Section 609. Corporate Trustee Required; Eligibility.................................... 53
Section 610. Resignation and Removal; Appointment of Successor.......................... 53
Section 611. Acceptance of Appointment by Successor..................................... 55
Section 612. Merger, Conversion, Consolidation or Succession to Business................ 56
Section 613. Preferential Collection of Claims Against Company.......................... 57
Section 614. Appointment of Authenticating Agent........................................ 57
</TABLE>
- iv -
<PAGE> 8
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<TABLE>
<CAPTION>
<S> <C>
Section 701. Company to Furnish Trustee Names and Addresses of Holders................. 59
Section 702. Preservation of Information; Communications to Holders..................... 59
Section 703. Reports by Trustee......................................................... 60
Section 704. Reports by Company......................................................... 60
</TABLE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
<TABLE>
<CAPTION>
<S> <C>
Section 801. Company May Consolidate, Etc., Only on Certain Terms....................... 60
Section 802. Rights and Duties of Successor Corporation................................. 61
Section 803. Officers' Certificate and Opinion of Counsel............................... 62
</TABLE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
<TABLE>
<CAPTION>
<S> <C>
Section 901. Supplemental Indentures Without Consent of Holders........................ 62
Section 902. Supplemental Indentures with Consent of Holders............................ 64
Section 903. Execution of Supplemental Indentures....................................... 65
Section 904. Effect of Supplemental Indentures.......................................... 66
Section 905. Conformity with Trust Indenture Act........................................ 66
Section 906. Reference in Securities to Supplemental Indentures......................... 66
Section 907. Notice of Supplemental Indentures.......................................... 66
</TABLE>
ARTICLE TEN
COVENANTS
<TABLE>
<CAPTION>
<S> <C>
Section 1001. Payment of Principal, Premium and Interest................................ 66
Section 1002. Maintenance of Office or Agency........................................... 67
Section 1003. Money for Securities Payments to Be Held in Trust......................... 68
Section 1004. Corporate Existence....................................................... 69
Section 1005. Statement as to Compliance................................................ 70
Section 1006. Waiver of Certain Covenants............................................... 70
</TABLE>
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<PAGE> 9
REDEMPTION OF SECURITIES
<TABLE>
<S> <C>
Section 1007. Additional Amounts........................................................ 70
</TABLE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<TABLE>
<CAPTION>
<S> <C>
Section 1101. Applicability of Article.................................................. 71
Section 1102. Election to Redeem; Notice to Trustee..................................... 71
Section 1103. Selection by Trustee of Securities to Be Redeemed......................... 72
Section 1104. Notice of Redemption...................................................... 72
Section 1105. Deposit of Redemption Price............................................... 74
Section 1106. Securities Payable on Redemption Date..................................... 74
Section 1107. Securities Redeemed in Part............................................... 75
</TABLE>
ARTICLE TWELVE
SINKING FUNDS
<TABLE>
<CAPTION>
<S> <C>
Section 1201. Applicability of Article.................................................. 76
Section 1202. Satisfaction of Sinking Fund Payments with Securities..................... 76
Section 1203. Redemption of Securities for Sinking Fund................................. 76
</TABLE>
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
<TABLE>
<CAPTION>
<S> <C>
Section 1301. Applicability of Article.................................................. 77
</TABLE>
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
<TABLE>
<S> <C>
Section 1401. Applicability of the Article; Company's Obligation to Effect
Defeasance or Covenant Defeasance. ....................................... 77
Section 1402. Defeasance and Discharge.................................................. 78
Section 1403. Covenant Defeasance....................................................... 78
Section 1404. Applicability of the Article; Company's Obligation to Effect
Defeasance or Covenant Defeasance. ....................................... 79
</TABLE>
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<PAGE> 10
<TABLE>
<S> <C>
Section 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions. .......................................... 81
Section 1406. Reinstatement............................................................. 82
Section 1407. Effect on Subordination Provisions........................................ 83
</TABLE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
<TABLE>
<S> <C>
Section 1501. Purposes for Which Meetings May Be Called................................ 83
Section 1502. Call, Notice and Place of Meetings....................................... 84
Section 1503. Persons Entitled to Vote at Meetings..................................... 84
Section 1504. Quorum; Action........................................................... 84
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings..... 85
Section 1506. Counting Votes and Recording Action of Meetings.......................... 86
</TABLE>
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
<TABLE>
<S> <C>
Section 1601. Securities Subordinate to Senior Indebtedness............................. 87
</TABLE>
ARTICLE SEVENTEEN
SECURITIES IN FOREIGN CURRENCIES
<TABLE>
<S> <C>
Section 1701. Applicability of Article................................................... 87
</TABLE>
- vii -
<PAGE> 11
INDENTURE, dated as of March __, 1998, between THE DIAL CORPORATION, a
Delaware corporation (the "Company"), having its principal office at 15501 North
Dial Boulevard, Scottsdale, Arizona 85260-1619, and Norwest Bank Arizona, N.A.,
as Trustee hereunder (the "Trustee"), having its offices at Corporate Trust
Department 9030, 3300 N. Central Avenue, Fourth Floor, Phoenix, AZ 85012.
RECITALS OF THE COMPANY
The Company deems it advisable to issue from time to time for its
lawful purposes its unsecured debentures, notes or other evidences of
indebtedness (hereinafter called the "Securities") in one or more series as in
this Indenture provided, and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have, when capitalized, the
meanings assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
<PAGE> 12
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and except as otherwise herein expressly provided, the term "generally accepted
accounting principles" or "GAAP" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the time of application thereof;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) all references to "dollars," "$," "U.S. dollars," "United States
dollars" or "cash" shall refer to the lawful currency of the United States of
America; and
(f) the definitions included herein may be modified, expanded, deleted
or otherwise amended in a supplemental indenture after the date hereof or
pursuant to Section 301 hereof.
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security or pursuant to a Board Resolution, under circumstances
specified herein or therein, to be paid by the Company in respect of certain
taxes, assessments or other governmental charges imposed on Holders specified
therein and which are owing to such Holders.
"Affiliate" means, with respect to any specified Person, any other
Person which, directly or indirectly, is in control of, is controlled by or is
under common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power, direct or indirect, to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 614.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in
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<PAGE> 13
connection with which the term is used or in the financial community of each
such place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on a day that is a Business Day in the place of publication.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 203 evidencing all or part of a series of Securities, authenticated and
delivered to the Depositary for such series or its nominee, and registered in
the name of such Depositary or nominee.
"Business Day" when used with respect to any Place of Payment means,
unless otherwise specified with respect to any Securities pursuant to Section
301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in the Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of the Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, capital stock issued
by such Person other than Preferred Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
-3-
<PAGE> 14
Vice Chairman, its Chief Executive Officer, its President, its Chief Financial
Officer or a Vice President (whether or not designated by a number or a word or
words added before or after the title "Vice President"), and by any one of its
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary and delivered
to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be administered, which
office as of the date of this Indenture is the address of the Trustee set forth
in Section 105.
"corporation" means a corporation, association, limited liability
company, joint-stock company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, The Depository Trust Company and its successors, or another Person
designated as Depositary by the Company pursuant to Section 301, which must be a
clearing agency registered under the Exchange Act, and if at any time there is
more than one such Person, "Depositary" shall mean the Depositary with respect
to the Securities of that series.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
-4-
<PAGE> 15
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on the relevant Security or any
Additional Amounts in respect thereof shall be payable, in each case where the
payment or payments thereunder are supported by the full faith and credit of the
United States of America or such other government or governments, as the case
may be, or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America or such other
government or governments, in each case where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government or governments, as the
case may be, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder" means in the case of any Registered Security, the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, the bearer thereof and, in the case of any Coupon, the
bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301;
-5-
<PAGE> 16
provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of those particular
series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted.
"Indexed Security" has the meaning specified in Section 301(k).
"interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, repayment at the option of
the Holder or otherwise.
"Office or Agency" with respect to any Securities, means an office or
agency of the Company maintained or designated as a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, Vice Chairman, the Chief Executive Officer, the President, Chief
Financial Officer or a Vice President (whether or not designated by a number or
a word or words added before or after the title "Vice President"), and by the
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or the Trustee, and who shall be
reasonably acceptable to the Trustee.
-6-
<PAGE> 17
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" when used with respect to any Securities, means,
as of the date of determination, all such Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any Coupons
appertaining thereto except, in the case of Securities as to which the
Company had effected satisfaction and discharge pursuant to Article
Four, to the extent provided in Article Four; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor reasonably
satisfactory to the Trustee has been made; and Securities, except to
the extent provided in Section 1402 and 1403, with respect to which the
Company has effected defeasance and/or covenant defeasance, as provided
in Article Fourteen;
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof reasonably satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and
(iv) Securities converted or exchanged into Common Stock or other
debt securities pursuant to or in accordance with this Indenture if the
terms of such Securities provide for convertibility pursuant to Section
301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, (i) the
principal amount of an Original Issue Discount Security
-7-
<PAGE> 18
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal
amount of any Indexed Security of any series that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise established as contemplated by Section 301
with respect to such Security, (iii) the principal amount of a Security
denominated in Foreign Currency that shall be deemed outstanding for such
purpose shall be the Dollar equivalent, determined on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (i) above) of
such Security, and (iv) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, business trust,
partnership, joint venture, joint-stock company, limited liability company,
association, company, trust, unincorporated organization or government or any
agency or political subdivision.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as established as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen Coupon
appertains.
-8-
<PAGE> 19
"Preferred Stock" means, with respect to any Person, capital stock
issued by such Person that is entitled to a preference or priority over any
other capital stock issued by such Person upon any distribution of such Person's
assets, whether by dividend or upon liquidation.
"Repayment Date," when used with respect to any Security to be repaid
at the option of the Holder, means the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price," when used with respect to any Security to be repaid
at the option of the Holder, means the price at which it is to be repaid by or
pursuant to this Indenture.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on any Registered Security of any series means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date."
-9-
<PAGE> 20
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Department (or any successor department)
including, without limitation, any vice president (whether or not designated by
a number or a word or words added before or after the title "Vice President"),
any trust officer, any assistant secretary, the controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer or employee to whom such
matter is referred because of such officer's or employee's knowledge of and
familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to such Person shall mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" has the meaning determined pursuant to Section
301(u).
"Significant Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is a "significant subsidiary" as defined in Rule
1-02(w) of Regulation S-X promulgated under the Securities Act of 1933, as
amended (as in effect on the date of the Indenture).
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"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 or a Coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is, or such Additional Amounts are, due and payable.
"Subordinated Securities," means any Securities which, pursuant to
Section 301, are by their terms expressly subordinated in right of payment to
Senior Indebtedness.
"Subsidiary" means (i) any corporation in which at least a majority of
the total voting power of whose outstanding voting stock is owned, directly or
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<PAGE> 21
indirectly, at the date of determination by the Company and/or one or more other
Subsidiaries of the Company, (ii) any partnership in which the Company and/or
one or more other Subsidiaries of the Company owns, directly or indirectly, at
the date of determination at least a majority interest in the equity capital or
profits of such partnership, or (iii) any other Person in which the Company
and/or one or more other Subsidiaries of the Company, directly or indirectly, at
the date of determination (x) owns at least a majority ownership interest or (y)
has the power to elect or direct the election of at least a majority of the
directors or other governing body of such Person. For the purposes of this
definition, "voting stock," with respect to any corporation, means capital stock
of any class or series of such corporation, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
of the corporation.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States," except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Debt Securities pursuant to Section 301, any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States, any estate the income of which is
subject to United States federal income taxation regardless of its source, or
any trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States fiduciaries who have the
authority to control all substantial decisions of the trust.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such
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<PAGE> 22
certificates and opinions as may be required under the Trust Indenture Act,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished. Each such certificate or opinion shall
be given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1005) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel
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<PAGE> 23
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided in or pursuant to this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. If, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
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(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, by Board Resolution, fix any date not more than 60 days nor less
than 10 days prior to the date of any of the following actions as the record
date for the purpose of determining the Holders of Registered Securities of any
series 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 Holders of Registered Securities of such
series. If not set by the Company prior to the first solicitation of a Holder of
Registered Securities of such series 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 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date for action to be taken by the Holders of one or more series of
Registered Securities, only the Holders of Registered Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of commencement and the date of
termination of holding the same, shall be proved by the Security Register.
(e) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of commencement and the date of
termination of holding the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary reasonably acceptable to the Company, wherever
situated, if such certificate shall be deemed by the Company and the Trustee to
be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Company and the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is provided
to the Trustee by some other Person, or (iii) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in
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exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, any Security Registrar, any Paying Agent,
any Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(g) For purposes of this Indenture, any action by the Holders which may
be taken in writing may be taken by electronic means or as otherwise reasonably
acceptable to the Trustee.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its offices at Corporate
Trust Department 9030, 3300 N. Central Avenue, Fourth Floor, Phoenix,
Arizona 85012, Attention: Corporate Trust Department, or at any other
address previously furnished in writing by the Trustee to the Holders
or the Company or any other obligor on the Securities; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument to the Attention of
the Treasurer with a copy to the Company's Chief Financial Officer or
at any other address previously furnished in writing to the Trustee by
the Company. Any such communication shall be effective upon receipt.
Section 106. Notice to Holders; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of any event,
(a) such notice shall be sufficiently given (unless otherwise
herein expressly provided) to each Holder of Registered Securities affected by
such event if in writing and mailed, first-class postage prepaid, at his address
as it appears in the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving of
such notice; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, affected by such event if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be
specified in such Securities on a
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Business Day, such publication to be not earlier than the earliest date and not
later than the latest date prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of such publication or, if
published more than once, on the date of the first such publication.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of Registered Securities shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been received by such Holder of Registered
Securities, whether or not such Holder of Registered Securities actually
receives such notice. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the Trust Indenture Act provision shall control. 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.
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Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders of the Securities or Coupons, and, solely in the case
of Securities which, pursuant to Section 301, are by their terms expressly
subordinated in right of payment to Senior Indebtedness, the holders of such
Senior Indebtedness, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 112. Governing Law.
This Indenture, the Securities and any Coupons shall be deemed to be a
contract under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of such state, without
regard to principles of conflicts of laws. This Indenture is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be, of any Security shall not be a Business Day at any Place of Payment for such
Security, then notwithstanding any other provision of this Indenture, any
Security or any Coupon (other than a provision of any Security or any Coupon
established as contemplated by Section 301 and which specifically states that
such provision shall apply in lieu of this Section 113), payment of interest or
principal (and premium, if any) need not be made at such
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Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date or at the Stated Maturity or Maturity, as the case may be, and no interest
shall accrue on such payment for the period from and after such Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be, to the next succeeding Business Day.
For purposes of this Section 113, the sole Place of Payment with respect to any
Book-Entry Securities for which the Depositary is The Depository Trust Company
or its successor shall be deemed to be the Borough of Manhattan, The City of New
York.
Section 114. Immunity of Stockholders, Directors, Officers and
Agents of the Company.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any predecessor or
successor, either directly or through the Company or any predecessor or
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 and as part of the consideration for
the issue of the Securities.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms of Securities.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent Book-Entry Security issued pursuant to this Indenture shall be in
substantially the forms as shall be established by or pursuant to one or more
Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than as set forth in a Board Resolution, an
Officers' Certificate detailing such establishment) or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
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Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
The definitive Securities and definitive Coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities or Coupons.
Section 202. Securities in Book-Entry Form.
If Securities of or within a series are issuable in book-entry form, as
specified as contemplated by Section 301, then, notwithstanding clause (i) of
Section 301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in book-entry form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified in such Security or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent book-entry form in
the manner and upon instructions given by the Person or Persons specified in
such Security or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instruction by
the Company with respect to endorsement, delivery or redelivery of a Security in
book-entry form shall be in writing but need not comply with Section 102 and
need not be accompanied by Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in book-entry form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in book-entry form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the penultimate
sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any), any interest on, and any Additional Amounts in respect of any Security
in temporary or permanent book-entry form shall be made to the Person or Persons
specified therein.
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Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Book-Entry Security (a) in the
case of a permanent Book-Entry Security in registered form, the Holder of such
permanent Book-Entry Security in registered form or (b) in the case of a
Book-Entry Security in bearer form, the Person or Persons specified pursuant to
Section 301.
Section 203. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall bear a
legend in substantially the following form and such other legends as may be
required by the applicable Depositary or as shall be deemed necessary or
desirable by the Company:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is not exchangeable
for Securities registered in the name of a Person other than the
Depositary or its nominee except in the circumstances described in
the Indenture, and unless and until it is exchanged in whole or in part
for Securities in definitive certificated form, this Security may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or nominee of such successor Depositary."
Section 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
"TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Norwest Bank Arizona, N.A., as Trustee
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By:
---------------------------------
Authorized Signatory"
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. With respect to any
series of Securities which may be designated and authenticated and delivered
under this Indenture, there shall be established in or pursuant to one or more
Board Resolutions (and to the extent established pursuant to rather than as set
forth in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any such series (except as provided in
the last paragraph of this Section 301), any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (a), (b)
(with respect to any limit upon the aggregate principal amount of the Securities
which may be authenticated and delivered under this Indenture), (r) and (u)
below), if so provided, may be determined from time to time by the Company with
respect to unissued Securities of the series when issued from time to time):
(a) the title of the Securities (which shall distinguish the Securities
of the series from Securities of any other series) or series of which they
are a part;
(b) the aggregate principal amount of the Securities and any limit upon
the aggregate principal amount of the Securities of the series which may
be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107, upon repayment in part of any Security
of such series pursuant to Article Thirteen or upon surrender in part of
any Security for conversion or exchange into Common Stock or other
securities pursuant to its terms, and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder), which limit, unless otherwise expressly established,
may be changed from time to time by or pursuant to Board Resolution,
Officers' Certificate or indentures supplemental hereto without the
consent of any Holders; in the event that such series of Securities may be
reopened from time to
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time for issuances of additional Securities of such series, the terms
thereof shall indicate whether any such additional Securities shall have
the same terms as the prior Securities of such series or whether the
Company shall be entitled to establish additional or different terms with
respect to such additional Securities;
(c) the Person to whom any interest on a Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such series;
(d) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of (and premium,
if any, on) such Securities will be payable;
(e) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities will be issued;
(f) the rate or rates (which may be fixed, floating or adjustable) or
the method of determination thereof, at which the Securities of the series
will bear interest, if any, the date or dates from which such interest
shall accrue or method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable,
the Regular Record Date, if any, for any such interest payable on any
Interest Payment Date, or the method by which such date or dates shall be
determined, whether and under what circumstances Additional Amounts on
such Securities or any of them shall be payable and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(g) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer
and exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices or demands to or upon the Company in respect of the
Securities of the series and the Indenture may be served;
(h) the period or periods within which, the price or prices at which,
the Currencies, currency units or composite currencies in which, and the
other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(i) the obligation, if any, of the Company to redeem, repay or purchase
any of such Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which and the other terms
and conditions upon which Securities of the series will be redeemed,
repaid or purchased, in whole or in part, pursuant to any such obligation;
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(j) if other than denominations of $1,000 and any integral multiple
thereof the denominations in which any Registered Securities of the series
shall be issuable, and if other than the denominations of $5,000 and any
integral multiple thereof, the denominations in which Securities of the
series that are Bearer Securities shall be issuable;
(k) if other than the Currency of the United States of America, the
foreign currency, currencies, currency units or composite currencies in
which the principal of or any premium or interest on such Securities will
be payable (and the manner in which the equivalent of the principal amount
thereof in the Currency of the United States of America is to be
determined for any purpose, including for the purpose of determining the
principal amount deemed to be outstanding at any time);
(l) if the amount of payments of principal of or any premium or
interest on any Securities of the series ("Indexed Securities") may be
determined with reference to an index, pursuant to a formula, or pursuant
to other methods (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), the manner in
which such amounts will be determined;
(m) if the principal of or any premium or interest on such Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies, currency units or composite currencies
other than those in which the Securities are stated to be payable, the
currencies, currency units or composite currencies in which payment of any
such amount as to which such election is made will be payable, and the
periods within which and the terms and conditions upon which such election
is to be made;
(n) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to this
Indenture or, if applicable, the portion of the principal amount of
Securities of the series that is convertible into or exchangeable for
other securities or the method by which such portion shall be determined;
(o) the application, if any, of Section 1402 and/or 1403 to the
Securities of the series (and, in the case of Section 1403, if applicable,
any additional covenants subject to covenant defeasance) and any
provisions in modification of, in addition to or in lieu of any of the
provisions in Sections 1402 and 1403; and, if either Section 1402 or 1403
is made applicable with respect to the Securities of the series, whether
such defeasance or covenant defeasance must be affected with
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respect to all Outstanding Securities of the series or whether such
defeasance or covenant defeasance may be affected with respect to
Securities within the series;
(p) the obligation, if any, of the Company to permit the conversion or
exchange of the Securities of the series into the Company's Common Stock
or other securities, as the case may be, and the terms and conditions upon
which such conversion or exchange shall be effected (including, without
limitation, the initial conversion price or rate, the conversion period,
the conversion agent, if any adjustment of the applicable conversion price
or rate and any requirements relative to the reservation of such shares or
securities for purposes of conversion);
(q) whether any of the Securities of the series will be issued in whole
or in part in book-entry form and, in such case, the initial Depositary
with respect to such Book-Entry Security or Securities and the
circumstances under which any such Securities may be registered in the
name of a Person other than such Depositary or its nominee, if other than
as set forth in Section 305;
(r) whether Securities of the series are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities and
Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and the
terms, if any, upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa;
(s) if any of the Securities of the series are to be issuable as Bearer
Securities, the date as of which any such Bearer Security shall be dated,
if other than the date of original issuance of the first of such
Securities to be issued;
(t) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(u) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company provided for with respect to
Securities of the series whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
(v) the terms, if any, pursuant to which the Securities of the series
will be made subordinate in right of payment to all Senior Indebtedness of
the Company, and the definition of any such Senior Indebtedness (in the
absence of an express statement that the Securities of such series are
subordinate in right of payment to all Senior Indebtedness, the Securities
of such series shall not be subordinate to Senior Indebtedness);
(w) the application, if any, of judgments in respect of any specified
currency, to the Securities;
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(x) whether the payment of principal, premium and interest, if any,
Additional Amounts, if any, and other amounts due hereunder, and
performance of the Company's other obligations hereunder, will be
guaranteed by one or more guarantors, including subsidiaries of the
Company; and
(y) any other terms of the series, whether or not consistent with
the provisions of this Indenture.
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided by the Company in the Board Resolution or pursuant to the Board
Resolution and set forth in the Officers' Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Securities. The
terms of the Securities may provide, without limitation, that the Securities
shall be authenticated and delivered by the Trustee on original issue from time
to time upon telephonic or written order of persons designated in the Board
Resolution, Officers' Certificate or supplemental indenture (telephonic
instructions to be promptly confirmed in writing by such person) and that such
persons are authorized to determine, consistent with such Board Resolution,
Officers' Certificate or supplemental indenture, such terms as are specified in
such Board Resolution, Officers' Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company as contemplated by this Section 301, a
series may be reopened without consent of any Holder from time to time for
issuances of additional Securities of such series. The terms of any Security may
be established prior to the issuance thereof but after the issuance of other
Securities of the same series.
Section 302. Currency; Denominations.
In the absence of any such provisions with respect to the Securities of
any series, the principal of, any premium and interest on and any Additional
Amounts with respect to the Securities shall be payable in Dollars. In the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities denominated in Dollars shall be issuable in registered
form without Coupons, other than Registered Securities issued in book-entry form
(which may be of any denomination), and shall be issuable in denominations of
$1,000 and any integral multiple thereof. Bearer Securities denominated in
Dollars shall be issuable in registered form without Coupons, other than Bearer
Securities issued in book-entry form (which may be of any denomination), and
shall be issuable in denominations of $5,000 and any integral multiple thereof.
Securities not denominated in Dollars shall be issuable in such denominations as
are established with respect to such Securities in or pursuant to this
Indenture.
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Section 303. Execution, Authentication, Delivery and Dating.
The Securities and Coupons, if any, shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Financial Officer or one of its Vice Presidents, under its
corporate seal or a facsimile thereof which may, but need not, be attested by
its Treasurer, one of its Assistant Treasurers, its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
or Coupons, if any, may be manual or facsimile signatures of the present or any
future such authorized officer and may be imprinted or otherwise reproduced on
the Securities or Coupons.
Securities and any Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
Coupons appertaining thereto, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities to or upon the order of the
Company or pursuant to such procedures acceptable to the Trustee and to such
recipients, as the case may be, as specified from time to time by a Company
Order. If all the Securities of any series are not to be issued at one time and
if the terms of such Securities established as contemplated by Section 301 so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the completion and authentication of such Securities from time to time. In
authenticating Securities of any series and any Coupons appertaining thereto,
and accepting the additional responsibilities under this Indenture in relation
to such Securities and any Coupons appertaining thereto, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon:
(a) any Board Resolution, Officers' Certificate and/or indenture
supplemental hereto by or pursuant to which the forms and terms of such
Securities are established as contemplated by Sections 201 and 301;
(b) an Officers' Certificate stating that the forms and terms of such
Securities and Coupons, if any, have been established pursuant to Sections
201 and 301 and comply with this Indenture; and
(c) an Opinion of Counsel substantially to the effect that:
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(i) the forms and the terms of such Securities and Coupons, if
any, have been duly authorized and established in conformity with the
provisions of this Indenture,
(ii)all conditions precedent provided for in this Indenture
relating to the Trustee's authentication of such Securities and
Coupons, if any, have been complied with, and
(iii) such Securities and Coupons, if any, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles and to such other matters as
such counsel may specify.
The Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Company Order, Board Resolution,
indentures supplemental hereto, Officers' Certificate and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents (with such
modifications as may be appropriate) are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued and reasonably contemplate such authentication of each such Security.
Each Registered Security shall be dated the date of its authentication
unless otherwise established therefor as contemplated by Section 301. Each
Bearer Security shall be dated as of the date specified in or pursuant to this
Indenture.
No Security or Coupon appertaining thereto, if any, shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee or an
Authenticating Agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have been
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authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture. Except as permitted by Section 306 or 307 or as may
otherwise be provided in or pursuant to this Indenture, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons appertaining
thereto then matured have been detached and canceled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in book-entry form.
Except in the case of temporary Securities in book-entry form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the Office or Agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute, and the Trustee shall authenticate and deliver in exchange therefor,
one or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor; provided,
however, that no definitive Bearer Security, except as provided in or pursuant
to this Indenture, shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in or pursuant to this Indenture. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
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Section 305. Registration, Registration of Transfer and Exchange.
With respect to the Registered Securities of each series, the Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
Office or Agency of the Company in a Place of Payment a register (the register
maintained in such office and in any other Office or Agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities and of transfers of the Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby appointed "Security Registrar" for the purpose of registering
the Securities and transfers of the Securities as herein provided.
The Company shall have the right to remove and replace, from time to time,
the Security Registrar for any series of Securities; provided that no such
removal or replacement shall be effective until a successor Security Registrar
with respect to such series of Securities shall have been appointed by the
Company and shall have accepted such appointment. In the event the Trustee shall
not be or shall cease to be Security Registrar with respect to a series of
Securities, it shall have the right to examine the Security Register for such
series at all reasonable times. There shall be only one Security Register for
each series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the Office or Agency of the Company in a Place of Payment for
Securities of that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
containing identical terms and provisions, bearing a number not
contemporaneously outstanding.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, any authorized
denominations and of a like aggregate principal amount and tenor, containing
identical terms and provisions, upon surrender of the Securities to be exchanged
at such Office or Agency. Whenever any Registered Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
If, but only if, permitted by the applicable Board Resolution and set
forth in the applicable Officers' Certificate, or in any indenture supplemental
hereto, with respect to Securities of any series, at the option of the Holder,
Bearer Securities of such series may be exchanged for Registered Securities of
such series containing identical terms,
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denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (a) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (b)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to Securities of
any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 306, 906 or 1107, not involving any transfer
and other than exchanges of interests in Book-Entry Securities for definitive
Securities pursuant to the second succeeding paragraph.
Except as otherwise provided in or pursuant to this Indenture, neither the
Company nor the Trustee shall be required (a) to issue, register the transfer of
or exchange Securities of any series, if such Security may be among those
selected for redemption, during a period beginning at the opening of business 15
days before selection of the Securities of that series to be redeemed under
Section 1103 and ending at the close of business on (i) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (ii) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption; (b)
to register the transfer of or exchange any Registered Security, or portion
thereof, so selected for redemption in whole or in part, except in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed; (c) to exchange any Bearer Security so selected for redemption except,
to the extent provided with respect to such Bearer Security, that such Bearer
Security shall be simultaneously surrendered for redemption with written
instruction for payment consistent with the provisions of this Indenture; or (d)
to issue, register the transfer of or exchange any Security which, in accordance
with its terms, has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not so repaid.
Notwithstanding the foregoing, no Book-Entry Security shall be registered
for transfer or exchange, or authenticated and delivered, whether pursuant to
this Section, Sections 304, 306, 906 or 1107 or otherwise, in the name of a
Person other than the Depositary for such Book-Entry Security or its nominee
until (a) the Depositary with respect to a Book-Entry Security notifies the
Company that it is unwilling or unable to
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continue as Depositary for such Book-Entry Security or the Depositary ceases to
be a clearing agency registered under the Exchange Act and no successor
Depositary for such Securities shall have been appointed within 90 days of such
notification or of the Company becoming aware of the Depositary ceasing to be so
registered, as the case may be; (b) the Company, in its sole discretion,
executes and delivers to the Trustee a Company Order that all Book-Entry
Securities of such series shall be so transferable and exchangeable; (c) there
shall have occurred and be continuing an Event of Default with respect to the
Securities of such series; or (d) upon the occurrence of such other condition as
may be established as contemplated by Section 301 for Securities of such series.
Upon the occurrence in respect of any Book-Entry Security of any series of any
one or more of the conditions specified in clauses (a), (b), (c) or (d) of the
preceding sentence, the Company shall without unnecessary delay deliver to the
Trustee certificated Securities of such series in such form and denominations as
are required by or pursuant to this Indenture, containing identical terms and in
aggregate principal amount equal to the aggregate principal amount of such
Book-Entry Securities and shall cause the Trustee to authenticate and deliver
such certificated Securities to such Persons as the Depositary with respect to
such series shall direct.
Except as provided in the preceding paragraph, any Security authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, any Book-Entry Security, whether pursuant to this Section, Section 304, 306,
906 or 1107 or otherwise, shall also be a Book-Entry Security and bear the
legend specified in Section 203.
Subject to the second preceding paragraph, if the Securities are
Book-Entry Securities, the Depositary or its nominee, as registered owner of a
Book-Entry Security, shall be the Holder of such Book-Entry Security for all
purposes under this Indenture, and owners of beneficial interests in a
Book-Entry Security shall hold such interests pursuant to the applicable
procedures of the Depositary. Accordingly, any such owner's beneficial interest
in a Book-Entry Security will be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Depositary or
its nominee.
If any beneficial owner of an interest in a Book-Entry Security is
entitled to exchange such interest for Securities of such series of like tenor,
terms and principal amount and which are not Book-Entry Securities, whether
pursuant to the third preceding paragraph or as otherwise specified as
contemplated by Section 301 and provided that any applicable notice provided in
the Book-Entry Security shall have been given, then without unnecessary delay
but in any event not later than the earliest date on which such interest may be
so exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such Book-Entry Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such
Book-Entry Security shall be
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surrendered by the Depositary or such depository as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such Book-Entry Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor and terms as the portion of such
Book-Entry Security to be exchanged which, unless the Securities of the series
are not issuable both as Bearer Securities and as Registered Securities, as
specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination 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 to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
required may be among those selected for redemption; and provided, further, that
no Bearer Security delivered in exchange for a portion of a Book-Entry Security
shall be mailed or otherwise delivered to any location in the United States. If
a Registered Security is issued in exchange for any portion of a Book-Entry
Security after the close of business at the Office or Agency where such exchange
occurs on (a) any Regular Record Date and before the opening of business at such
Office or Agency on the relevant Interest Payment Date or (b) 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;
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 Book-Entry Security
is payable in accordance with the provisions of this Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security, with Coupons appertaining thereto corresponding to the
Coupons, if any, of the same series and of like tenor, terms and principal
amount and bearing a number not contemporaneously outstanding, with Coupons
corresponding to the Coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon
and (b) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that
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such Security or Coupon has been acquired by a bona fide purchaser, the Company
shall execute and, upon the Company's request, the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen Coupon appertains
(with all appurtenant Coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, together with any Coupons appertaining
thereto, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, or in exchange for the Security to which a destroyed, lost or
stolen Coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and Coupons appertaining thereto or the destroyed, lost or stolen Coupon shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or Coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise established as contemplated by Section 301 with
respect to any Securities of any series, interest on any Registered Security
which is payable, and is
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punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest; provided, however, that each installment of interest on any
Registered Security may at the Company's option be paid by (a) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 308, to the address of such Person as its appears on
the Security Register, or (b) wire transfer to an account maintained by the
payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States. Unless otherwise provided in or pursuant to
this Indenture, in case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business at
an Office or Agency for such Security on any Regular Record Date therefor and
before the opening of business at such Office or Agency on the next succeeding
Interest Payment Date therefor, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date and interest shall not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise established as contemplated by Section 301 with
respect to Securities of any series, any interest on any Registered Security
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in paragraph (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Registered Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money in cash 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 provided in this clause. Thereupon
the Trustee shall fix
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a Special Record Date for the payment of such Defaulted Interest which shall not
be more than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
of such Securities at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (b). In case a Bearer Security is surrendered at the Office or
Agency for such Security in exchange for a Registered Security after the close
of business at such Office or Agency on any Special Record Date and before the
opening of business at such Office or Agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the Coupon relating to such Defaulted Interest and Defaulted Interest shall not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
(b) The Company may pay any Defaulted Interest on the Securities of
any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and interest to accrue, which were carried by such other Security.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 305 and 307) any interest on such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No owner of any beneficial interest in any Book-Entry Security held on its
behalf by a Depositary shall be deemed the Holder of, or have any direct rights
with respect to such Book-Entry Security for any purpose under this Indenture.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Book-Entry
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Book-Entry Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary, as a Holder, with respect to
such Book-Entry Security or impair, as between such Depositary and owners of
beneficial interests in such Book-Entry Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Book-Entry Security.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption, repayment
at the option of the Holder, registration of transfer or exchange, conversion,
or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
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cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities and any Coupons so delivered shall
be promptly canceled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
Section 310. Computation of Interest.
Except as otherwise established as contemplated by Section 301 in respect
of Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further effect with
respect to Securities of any series specified in such Company Order and any
Coupons appertaining thereto (except as to any surviving rights as provided in
the last paragraph of this Section 401 and rights to receive the principal,
premium, if any, interest, if any, and Additional Amounts, if any, with respect
to Securities of such series), and the Trustee, upon receipt of Company Order,
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(a) either
(i) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (A) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
305; (B) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306; (C) Coupons appertaining to Securities and Coupons of such series
called for redemption and maturing after the relevant Redemption Date
whose surrender has been waived as provided in Section 1106; and
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(D) Securities and Coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(ii) all Securities of such series and in the case of (A) or (B)
below, if applicable, any Coupons appertaining thereto, not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity
within one year, or
(C) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (A), (B) or (C) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional Amounts with
respect to, such Securities and any Coupons appertaining thereto, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date thereof, as the case
may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of
such series and any Coupons appertaining thereto; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this
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Indenture only if requested to do so with respect to Securities of such series
as to which it is Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to Securities of any series pursuant to this Section 401, (a) the
obligations of the Company to the Trustee under Section 607, (b) the obligations
of the Company to any Authenticating Agent under Section 614, (c) if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, in each case with respect to such Securities and (d)
the obligations of the Company and the Trustee with respect to the Securities of
such series under Section 305, 306, 402, 1002 and 1003, with respect to the
payment of Additional amounts, if any, with respect to such Securities as
contemplated by Section 1007, with respect to any rights of the Holders of such
Securities to require the Company to repay such Securities as contemplated by
Section 1301, and with respect to any rights of the Holders to convert or
exchange such Securities into Common Stock or other securities, shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all cash
deposited with the Trustee pursuant to Section 401, shall be held in trust and
applied by it, in accordance with the provisions of the Securities of the
relevant series, the Coupons, if any, appertaining thereto, and this Indenture,
to the payment, either directly or through any Paying Agent (other than the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any), interest and
Additional Amounts for whose payment such cash has been deposited with or
received by the Trustee, but such cash need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental Indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to Section 301 of this Indenture:
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(a) default in the payment of principal of or premium, if any, on,
any Security of that series when due (whether at Stated Maturity, on any
Redemption Date or Repayment Date or otherwise); or
(b) default in the payment of any interest on, or any Additional
Amounts payable in respect of, any Security of that series or any Coupon
appertaining thereto as and when the same shall become due and payable,
and the continuance of such default for a period of 30 days; or
(c) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(d) default in the performance or breach of any covenant or
agreement of the Company in this Indenture (other than any such default or
breach which is elsewhere in this Section specifically dealt with or which
is included herein solely for the benefit of a series of Securities other
than that series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) default under any bond, debenture, note, mortgage, indenture or
other instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed for which
the Company or a Significant Subsidiary is directly responsible or
liable as obligor or guarantor having an aggregate principal amount
outstanding of at least $50,000,000, whether such indebtedness exists at
the date of this Indenture or shall thereafter be created, which default
shall have resulted in such indebtedness being declared due and payable
prior to the date on which it would otherwise have become due and
payable, without such indebtedness being discharged or such acceleration
having been rescinded or annulled; or
(f) the entry by a court having jurisdiction in the premises of (i)
a decree or order for relief in respect of the Company or a Significant
Subsidiary in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or (ii)
a decree or order adjudging the Company or such Significant Subsidiary
a bankrupt or insolvent, or
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appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or such
Significant Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days;
(g) the commencement by the Company or a Significant Subsidiary
of a voluntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the written
consent by it to the entry of a decree or order for relief in respect of
the Company or a Significant Subsidiary, as the case may be, in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law, or the written consent
by it to the filing or commencement of any case or proceeding in respect
of the Company or a Significant Subsidiary under any applicable
bankruptcy, insolvency, reorganization or other similar law, or the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due; or
(h) any other Event of Default established as contemplated by
Section 301 with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal of
(or, if any of the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) and accrued interest on all
of the Securities of that series to be immediately due and payable by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) and interest shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
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(a) the Company has paid or deposited with the Trustee a sum
sufficient in cash to pay:
(ii) all interest on the Securities of that series and any
Coupons appertaining thereto which has become due otherwise than by
such declaration of acceleration and any Additional Amounts with
respect thereto,
(iii) the principal of (and premium, if any, on) the Securities
of that series which has become due otherwise than by such
declaration of acceleration,
(iv) to the extent that payment of such interest is lawful,
interest upon overdue principal of, premium and interest, if any, on
and Additional Amounts, if any, with respect to the Securities of
such series at the rate or rates prescribed therefor in such
Securities,
(v) or this Indenture (it being understood that, if no rate of
interest on overdue amounts is specifically provided, then any such
overdue principal, premium, interest and Additional Amounts shall,
to the extent lawful, bear interest at the rate of interest borne by
such Securities), and all amounts owing the Trustee pursuant to
Section 607 in respect of Securities of that series; and
(b) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal and interest if any, of
Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on, or any
Additional Amounts payable in respect of any Security or any Coupon
appertaining thereto when such interest or Additional Amounts, as the case
may be, becomes due and payable and such default continues for a period of
30 days; or
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(b) default is made in the payment of the principal of or premium,
if any, on any Security when due (whether at Stated Maturity, on any
Redemption Date or Repayment Date or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and any Coupons appertaining thereto, the whole
amount then due and payable on such Securities and any Coupons appertaining
thereto for principal and any premium and interest and Additional Amounts and,
to the extent that payment of such interest shall be legally enforceable,
interest and Additional Amounts on any overdue principal, premium, interest, and
Additional Amounts at the rate or rates prescribed therefor in such Securities
(it being understood, that if no rate of interest on overdue amounts is
specifically provided, then any such overdue principal, premium, interest and
Additional Amounts shall, to the extent lawful,bear interest at the rate of
interest borne by such Securities), and, in addition thereto, such further
amount as shall be sufficient to cover the amounts due the Trustee pursuant to
Section 607 in respect of such Securities.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and Coupons and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of 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 on
the Company for the payment of overdue principal, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
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(a) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of any series, of
principal, and premium, if any, interest and Additional Amounts owing and
unpaid in respect of such Securities and any Coupons and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee pursuant to Section 607 and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official), in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay the Trustee any amount due it pursuant to Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the amounts due
the Trustee pursuant to Section 607, be for the ratable benefit of the Holders
of the Securities or Coupons in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or otherwise
on behalf of the Holders or the Trustee pursuant to this Article or through any
proceeding or any arrangement or restructuring in anticipation or in lieu of any
proceeding contemplated by this Article shall be applied, subject to applicable
law, in the following order, at the date or dates fixed by the Trustee and, in
the case of the distribution of such money on account of principal or any
premium, interest or Additional Amounts, upon presentation of the
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Securities or Coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 607;
SECOND: Solely in the case of any money collected in respect of
Subordinated Securities, to the payment of amounts then due and unpaid to the
holders of the applicable Senior Indebtedness to the extent required pursuant to
the subordination provisions relating to such Subordinated Securities:
THIRD: To the payment of the amounts then due and unpaid for principal of
and any premium, interest and Additional Amounts payable on the Securities and
any Coupons appertaining thereto in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities and Coupons
for principal and any premium interest and Additional Amounts, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
Section 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series or any
Coupons appertaining thereto shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders of Securities of another series or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, and Interest and
Additional Amounts, if any.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 305
and 307) any interest on or any Additional Amounts with respect to such Security
or such Coupon, as the case may be, on the respective Maturity or Maturities
expressed in such Security and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
To the extent permitted by applicable law, except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or Coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any
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right or remedy hereunder, or otherwise, shall not, to the extent permitted by
law, prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities or
Coupons appertaining thereto to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any series or be unduly
prejudicial to Holders of Securities of such series not joining therein,
and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto waive any past
default hereunder with respect to such series and its consequences, except a
default
(a) in the payment of the principal of or any premium or interest
on, or any Additional Amounts with respect to, any Security of such
series, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture;but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
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Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security of
any series 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 in respect of the Securities
of such series, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company or the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of such series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on, or Additional Amounts, if
any, with respect to any Security on or after the respective Maturities
expressed in such Security (including, in the case of redemption, on or after
the Redemption Date and, in the case of repayment, on or after the Repayment
Date) or for the enforcement of the right, if any, to convert or exchange any
Security into Common Stock or other securities in accordance with its terms).
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act and this Indenture. The Trustee shall be under no
obligation, subject to the duty of the Trustee during a default to act with the
required standard of care, to exercise any of its rights or powers under the
Indenture at the request or direction of any of the
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Holders of Securities of any series, unless such Holders shall have offered the
Trustee reasonable security or indemnity against costs, expenses and liabilities
which might be incurred by it in compliance with such request. Whether or not
therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit to all Holders of
Securities of such series, in the manner and to the extent provided in Trust
Indenture Act Section 313(c), notice of such default hereunder, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to any Security of such
series, or in the payment of any sinking fund installment with respect to 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
committee of Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Holders of the
Securities and Coupons of such series; and provided, further, that in the case
of any default of the character specified in Section 501(d) with respect to
Securities of such series, no notice to Holders shall be given until at least 60
days after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Securities of such series.
Subject to Trust Indenture Act Section 315(b), the Trustee shall not be deemed
to have, or be required to take, notice of any default or Event of Default
(other than a default described in paragraph (a), (b), or (c) of Section 501)
except upon (a) written notification from the Company or (b) written
notification from a Holder and, in the absence of such notice, the Trustee may
conclusively presume that there is no default or Event of Default except as
aforesaid. Subject to Section 601 of this Indenture, such notification shall not
be deemed to include receipt of information obtained in any report or other
documents furnished under Section 704 of this Indenture, which reports and
documents the Trustee shall have no duty to examine.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof and to the provisions of
Sections 315(a) through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon receipt by it of any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
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indebtedness or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any Coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall be
evidenced as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon a Board Resolution, an Opinion of Counsel or an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of any series or any Coupons appertaining thereto pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) 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
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conferred upon it by this Indenture other than any liabilities arising out of
the negligence of the Trustee;
(i) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it;
(j) in the absence of bad faith on its part, the Trustee may conclusively
rely on the statements in certificates and opinions furnished to it and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(k) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(l) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any
series, relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such
series; and
(m) no provision of this Indenture shall require the Trustee to determine
the maximum interest rate permissible under applicable law.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any Coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate subject to the qualifications set forth therein. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other Person.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) 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 the trust or trusts
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder; provided that the Trustee and each
predecessor Trustee shall promptly notify the Company of the commencement
of any action, or proceeding for which it intends to seek indemnity
hereunder, will permit the Company to conduct the defense thereof on its
behalf and will not compromise or settle any such action, suit or
proceeding without the prior approval of the Company.
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The Company's payment obligations pursuant to this Section 607 shall
survive the discharge of this Indenture. When the Trustee renders services or
incurs expenses or makes disbursements or advances after the occurrence of an
Event of Default specified in Section 501(f) or (g), the compensation for such
services and such expenses, disbursements and advances are intended to
constitute expenses of administration under any bankruptcy, insolvency,
reorganization or other similar law.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may, or any Holder who has been a
bona fide Holder of a Security of the applicable series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at least six months;
(ii) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by or pursuant to Board Resolution may
remove the Trustee with respect to all Securities or the Securities of any
series, or (B) subject to Section 514, any Holder who has been a bona fide
Holder of a Security of any series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the Securities of
such series and the appointment of a successor Trustee or Trustees with respect
thereto.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Company Request, Company Order or Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by the Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the
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Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
of such appointment shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Notices of resignation, removal and appointment may be combined into a single
notice.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and,
subject to Section 1003, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(i) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (ii)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(iii) 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
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indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the
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Trust Indenture Act regarding the collection of claims against the Company (or
any such other obligor).
Section 614. 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
and upon exchange, registration of transfer or partial redemption or repayment
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a bank or trust company or corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving
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such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall (a) mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to which
such Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (b) if Securities of that series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
If at any time there shall be an Authenticating Agent appointed with
respect to one or more series of Securities, then in lieu of the Trustee's
certificate of authentication, an alternative certificate of authentication
shall be borne by such Securities substantially in the following form:
"TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
By: ,
as Trustee
By: ,
as Authenticating Agent
By: ,
Authorized Signatory"
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The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each Regular Record Date
for Securities of each series at the time Outstanding, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities, semi-annually, upon such
dates as are set forth in the Board Resolution, Officers' Certificates indenture
supplemental hereto authorizing such series; and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; provided, however, that so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of
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information as to names and addresses of Holders made pursuant to the Trust
Indenture Act, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after each May 15, commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit to the Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to Trust Indenture Act
Section 313(a) in the manner provided pursuant to Section 313(c), and such other
reports as may be required under such Act in the manner and at the times
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
the Holders, be filed by the Trustee with the Company and, to the extent
required, with each stock exchange upon which any Securities are listed and with
the Commission. The Company will notify the Trustee when any Securities are
listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any other
Person, and the Company shall not sell, lease, assign, transfer or otherwise
convey all or substantially all of its assets to another Person, unless:
(a) (i) in the case of a merger, the Company shall be the surviving
corporation or (ii) the Person (if other than the Company) surviving the merger,
formed by such consolidation or which acquires such assets shall be an entity
organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia, and shall expressly assume the due and
punctual payment of the principal of
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and any premium and interest on and any Additional Amounts with respect to all
of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the other covenants and conditions of this
Indenture and the Securities to be performed or observed by the Company by an
indenture supplemental hereto, complying with Article Nine hereof, satisfactory
to the Trustee, executed and delivered to the Trustee by such Person; and
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing.
Section 802. Rights and Duties of Successor Corporation.
In case of any such merger in which the Company is not the surviving
corporation or any such consolidation, sale, lease, assignment, transfer, or
conveyance and upon any such assumption by the successor entity, such successor
entity shall succeed to and be substituted for, and may exercise every right and
power of, the Company under this Indenture and the Securities, with the same
effect as if it had been named herein as the party of the first part, and the
predecessor Person, except in the event of a lease, shall be relieved of any
further obligation under this Indenture and the Securities. Such successor
entity 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 Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor entity, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities of any series so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities of such series theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such merger in which the Company is not the surviving
corporation or any such consolidation, sale, lease, assignment, transfer or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
Section 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, conveyance, assignment, transfer or
lease permitted under Section 801 is also subject to the condition that the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
to the effect that any such
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consolidation, merger, sale, conveyance, transfer, assignment or lease, and the
assumption by any successor Person, and any such supplemental indenture, comply
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution (which Board Resolution may provide general terms for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to a Company Order), and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities as obligor under this Indenture;
(b) to add to the covenants of the Company for the benefit of the
Holders of the Securities of all or any series (and if such covenants are
to be for the benefit of the Securities of less than all series, stating
that such covenants are expressly being included solely for the benefit
of the Securities of such series) or to surrender any right or power
herein conferred upon the Company;
(c) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of the Securities of such series); provided, however,
that in respect of any such additional Events of Default 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 default or may limit the remedies available to the Trustee upon such
default or may limit the rights of Holders of a majority in aggregate
principal amount of that or those series of Securities to which such
additional Events of Default apply to waive such default;
(d) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without
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Coupons, to change or eliminate any restrictions on the payment of
principal of, any premium or interest on or any Additional Amounts with
respect to Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
exchanged for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
provided that any such action shall not adversely affect the interests of
the Holders of Securities of any series or any Coupons appertaining
thereto in any material respect;
(e) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (i) shall neither (A) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no such
Security Outstanding;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(g) to secure the Securities;
(h) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance,
covenant defeasance or satisfaction and discharge of the Securities of
any series pursuant to this Indenture; provided that any such action
shall not adversely affect the interests of the Holders of Securities of
such series or any other series of Securities or any Coupons appertaining
thereto in any material respect;
(i) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause
(i) shall not adversely affect the interests of the Holders of Securities
of any series or any Coupons appertaining thereto in any material
respect;
(j) to add a guarantor or guarantors for any series or all series
of the Securities;
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(k) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(l) to establish the form or terms of Securities of any series and
any related Coupons as contemplated by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into or
exchangeable for Common Stock or other securities, as the case may be.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolution (which Board
Resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to a Company Order), and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series and any related Coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or premium, if
any, or any installment of principal of or interest on any Security, or
the date, if any, on which any Security is subject to repayment at the
option of the Holder, or reduce the principal amount thereof or the rate
of interest thereon or any Additional Amounts with respect thereto or any
premium payable thereon, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1007 (except as contemplated by
Section 801(a) and permitted by Section 901(a)), or reduce the amount of
the principal of an Original Issue Discount Security or other Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount provable in
bankruptcy pursuant to Section 504, or change any Place of Payment where
or Currency in which any Security or any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Maturity thereof (as such Maturity, may be extended, if
applicable, in accordance with the terms of such Security or Coupon
appertaining thereto), or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any
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waiver with respect to such series (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section
1504 for quorum or voting, or
(c) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of the Securities of one or more particular series, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplement hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act, as then in effect at the
time of execution thereof.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of each supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal of
(and premium, if any) and interest on and any Additional Amounts payable in
respect or the Securities of that series in accordance with the terms of the
Securities of that series, any Coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable in respect of principal of (or premium, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
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Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for the Securities of that series
an Office or Agency where Securities of that series may be presented or
surrendered for payment, if applicable, or conversion, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company shall maintain, subject to any laws or
regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment or, if applicable, conversion; provided, however, that if the Securities
of such series are listed on the London Stock Exchange or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company shall maintain a Paying Agent in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such Office or Agency. If at any
time the Company shall fail to maintain any such required Office or Agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities or such series and any
Coupons appertaining thereto may be presented and surrendered for payment at the
place specified for the purpose with respect to such Securities as provided in
or pursuant to this Indenture, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities shall be made at any Office or Agency in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Securities may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if, but only if), payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
Office or Agency. Unless otherwise provided in or pursuant to this Indenture,
the Company hereby designates as the Place for Payment of each series of
Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Company's Office or
Agency in the Borough of Manhattan, The City of New York for such purpose and as
Security Registrar. The Company may subsequently appoint a different Office or
Agency in the Borough of Manhattan, The City of New York and a different
Security Registrar for the Securities of any series.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or any premium or interest on, or any Additional Amounts with
respect to, any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the Currency or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal and any premium and interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series and any related Coupons, it will, on or prior to each
due date of the principal of or any premium or interest on, or any Additional
Amounts with respect to, any Securities of that series, deposit with a Paying
Agent a sum (in the Currency or Currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series)) sufficient to pay such amount, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for the Securities of any
series, other than the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (a) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent; (b)
give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any payment of principal of (or
premium, if any) or interest, if any, on the Securities of such series; and (c)
during the continuance of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment in respect
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of the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on or any Additional Amounts with respect to any Security of any series
or any Coupon appertaining thereto and remaining unclaimed for two years after
such principal, premium or interest or Additional Amount has become due and
payable shall be paid to the Company upon Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once in an Authorized Newspaper in
each Place of Payment for such series or mailed to Holders of Registered
Securities entitled to such money notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and related rights and franchises (charter and statutory); provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer necessary or desirable in the conduct of the
business of the Company; and provided, further, however, that the foregoing
shall not prohibit a sale, transfer or conveyance of a Subsidiary or any of its
assets in compliance with the terms of the Indenture.
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Section 1005. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, a written
statement (which need not be contained in or accompanied by an Officers'
Certificate) signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, stating whether or
not, to the best of his or her knowledge, the Company is in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which he or she may have knowledge.
Section 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005 with respect to the
Securities of any series or with the covenants established as contemplated by
Section 301 with respect to the Securities of any series, except to the extent
the terms of such Securities established as contemplated by Section 301 make
this Section 1006 inapplicable to any such term, provision or condition of any
such covenant, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 1007. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts, if applicable, in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
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Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal or premium is made), and at least 10 days prior to each date of
payment of principal or premium or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company shall furnish to the Trustee and the principal Paying Agent or
Paying Agents, if other than the Trustee, an Officers' Certificate instructing
the Trustee and such Paying Agent or Paying agents whether such payment of
principal of and premium, if any, or interest, if any, on the Securities of such
series shall be made to Holders of Securities of such series or the Coupons
appertaining thereto who are not United States persons without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of such series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities or Coupons, and
the Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms established as
contemplated by Section 301 and (except as otherwise expressly established as
contemplated by Section 301 in respect of Securities of such series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or by action taken pursuant to a Board Resolution. In case
of any redemption at the election of the Company of less than all the Securities
of any series, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any
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redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series of a specified tenor and with
identical terms are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register. Failure to give notice by mailing in the manner herein
provided to the Holder of any Registered Securities designated for redemption as
a whole or in part, or any defect in the notice to any such Holder, shall not
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affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof.
(e) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(f) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and , if applicable, any accrued
interest and Additional Amounts pertaining thereto,
(g) that the redemption is for a sinking fund, if such is the
case,
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished,
(i) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption
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on the Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges may be
made,
(j) in the case of Securities of any series that are
convertible or exchangeable into Common Stock or other securities, the
conversion or exchange price or rate, the date or dates on which the
right to convert or exchange the principal of the Securities of such
series to be redeemed will commence or terminate, as applicable, and
the place or places where such Securities may be surrendered for
conversion or exchange, and
(k) the CUSIP number of such Securities, if any (or any other
numbers used by a Depositary to identify such Securities.
A notice of redemption given or published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money, in the Currency or Currencies in which the Securities of such series are
payable, sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall, if the same were interest-bearing,
cease to bear interest and the Coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security and any Coupons appertaining
thereto for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with, unless otherwise
provided in or pursuant to the Indenture, any accrued and unpaid interest to the
Redemption Date; provided, however, that, except as otherwise provided in or
pursuant to this Indenture or the Bearer Securities of such series, installments
of interest on Bearer Securities whose
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Stated Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as provided in Section 1002), and
provided, further, that, except as otherwise provided in or pursuant to this
Indenture or the Registered Securities of any series, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Registered Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price, or, at the
option of the Company, after payment to the Trustee for the benefit of the
Company of, an amount equal to the face amount of all such missing Coupons, or
the surrender of such missing Coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing Coupons in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security or, if no rate of interest on overdue amounts is prescribed in such
Security, at the rate of interest borne by such Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Registered
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series (a) deliver
Outstanding Securities of a series (other than any previously called for
redemption or which have been surrendered for repayment at the option of the
Holders) together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (b) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, as
provided for by the terms of such series; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities so delivered or applied as a
credit for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency or Currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) and the
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portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 , and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so delivered and credited.
If such Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 30 and
not more than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of
the Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be canceled. Notwithstanding anything to the contrary contained in
this Section 1301, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
Repayment Date an amount not less than the Repayment Price payable by the
Company on repayment of such Securities, together with, if applicable, accrued
interest thereon, and the obligation of the Company to pay the Repayment Price
of such Securities shall be satisfied and discharged to the extent such payment
is so paid by such purchasers.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of the Article; Company's Obligation
to Effect Defeasance or Covenant Defeasance.
Unless otherwise provided pursuant to Section 301, provision is hereby
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provision of the Section or
Sections, as the case may be, together with other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any Coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any Coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purpose of Section 1405 and other
Sections of this Indenture referred to in clauses (a) and (b) of this Section,
and to have satisfied all its other obligations under such Securities and any
Coupons appertaining thereto and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
herein: (a) the rights of Holders of such Outstanding Securities and any Coupons
appertaining thereto to receive, solely from the trust funds described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on and such
Additional Amounts, if any, with respect to such Securities and any Coupons
appertaining thereto when such payments are due, (b) the Company's and the
Trustee's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003 and with respect to payments of Additional Amounts, if any,
on such Securities as contemplated by Section 1007, (c) the rights, powers,
trusts, duties and immunities of the
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Trustee hereunder and (d) this Article. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1403 with respect to such
Securities and any Coupons appertaining thereto.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of the option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
released from its obligations under Section 1005, and, if specified pursuant to
Section 301, its obligations under any other covenant, with respect to such
Outstanding Securities and any Coupons appertaining thereto on and after the
date the conditions set forth in Section 1404 are satisfied (hereinafter
"covenant defeasance"), and such Securities and any Coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purpose of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1004 and 1005, or such
other covenant, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any Coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or other such covenant reason of reference in any
such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(d) or 501(h) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any Coupons appertaining thereto shall be unaffected thereby.
Section 1404. Applicability of the Article; Company's
Obligation to Effect Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of Section 1402 or
1403 to any Outstanding Securities of or within a series and any Coupons
appertaining thereto:
(a) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Fourteen) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any Coupons appertaining thereto, (i) an amount
sufficient (in such Currency or Currencies in which such Securities and
any Coupons appertaining thereto, and installments of principal, if
any, thereof and interest, if any, thereon, are then specified as
payable at Stated Maturity), (ii)
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Government Obligations applicable to such Securities and Coupons
appertaining thereto (determined on the basis of the Currency or
Currencies in which such Securities and Coupons appertaining thereto,
and installments of principal, if any, thereof and interest, if any,
thereon, are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide not later than one
day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on, and Additional Amounts, if any, with
respect to such Securities and any Coupons appertaining thereto, money
in an amount, or (iii) a combination thereof, in each case in an
amount, sufficient in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment
banking firm expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge (A) the
principal of (and premium, if any), on, interest, if any, on, and
Additional Amounts, if any, with respect to such Outstanding Securities
and any Coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or installment of principal or
interest and (B) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any Coupons
appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any Coupons appertaining thereto; provided that the
Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such Government Obligations to said payments with
respect to such Securities and any related coupons. Before such a
deposit, the Company may give to the Trustee, in accordance with
Section 1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance
with the terms of the Securities of such series and Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption
notice, if given, shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound;
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred and
be continuing on the date of such deposit or, insofar as Section 501(e)
or (f) are concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) since of the date of this
Indenture, there has been a change in the applicable United States
federal income tax law or the judicial interpretation thereof by a U.S.
federal court of competent jurisdiction, in either case to the effect
that, and based thereon such opinion shall confirm that, Holders of the
Securities of that series and any
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Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, and in the same
manner and at the same times, as would have been the case if such
defeasance had not occurred;
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same amounts, and in the
same manner and at the same times, as would have been the case if such
covenant defeasance had not occurred; and
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that, as a result
of a deposit pursuant to subsection (a) above and the related exercise
of the Company's option under Section 1402 or Section 1403 (as the case
may be), registration is not required under the Investment Company Act
of 1940, as amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust funds; and
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may
be established as contemplated by Section 301 in respect of the
Securities of that series.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided
for relating to either the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be) have been
complied with.
Section 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any Outstanding Securities of
any series and any Coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any Coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any Coupons appertaining thereto of all sums due and to become due thereon
in respect of principal
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(and premium, if any) and interest and Additional Amounts, if any, but such
money need not be segregated from other funds except to the extent required by
law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities pursuant to Section 301, if, after a deposit referred to in Section
1404(a) has been made, (a) the Holder of a Security in respect of which such
deposit was made is entitled to, and does, elect pursuant to Section 301 or the
terms of such Security to receive payment in a Currency other than that in which
the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in
which the deposit pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election ) the monies, proceeds from Government
Obligations or other property deposited in respect of such Security into the
Currency in which such Security becomes payable as a result of such election or
Conversion Event based on (x) in the case of payments made pursuant to clause
(a) above, the applicable market exchange rate for such Currency in effect on
the second Business Day prior to each payment date, or (y) with respect to a
Conversion Event, the applicable market exchange rate for such Foreign Currency
in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 1404 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants or a nationally recognized
investment bank expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
Section 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money
in accordance with Section 1405 by
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reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and such Securities and any related
coupons shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1402 or 1403, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1405; provided, however, that if the Company makes any payment of
principal of (or premium, if any) or interest, if any, on any such Security or
any related coupon following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
Section 1407. Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 301 with
respect to any series of Subordinated Securities, the provisions for
subordination of such Subordinated Securities contemplated by Article Sixteen
hereof are hereby expressly made subject to the provisions for satisfaction and
discharge set forth in Article Four hereof and the provisions for defeasance and
covenant defeasance set forth in this Article Fourteen and, anything herein to
the contrary notwithstanding, upon the effectiveness of such satisfaction and
discharge pursuant to Article Four or any such defeasance or covenant defeasance
pursuant to this Article Fourteen with respect to any Securities, such
Securities shall thereupon cease to be so subordinated and shall no longer be
subject to the subordination provisions applicable thereof and, without
limitation to the foregoing, all monies, Government Obligations and other
securities or property deposited with the Trustee (or other qualifying trustee)
in trust in connection with such satisfaction and discharge, defeasance or
covenant defeasance, as the case may be, and all proceeds therefrom may be
applied to pay the principal of, premium, if any, and interest, if any, on, and
Additional Amounts, if any, with respect to such Securities as and when the same
shall become due and payable notwithstanding the provisions contemplated by
Article Sixteen hereof.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
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Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 106) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (a) of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by
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the Holders of not less than a specified percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified percentage,
which is less than a majority in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting duly convened
and at which a quorum is present as aforesaid only by the affirmative vote of
the Holders of at least such specified percentage in principal amount of the
Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall
-86-
<PAGE> 97
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified
-87-
<PAGE> 98
written reports in triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of Holders of Securities
of any series shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 1601. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security of any
series, by his acceptance thereof, likewise covenants and agrees, that solely to
the extent and in the manner set forth in an indenture supplemental hereto
pursuant to Section 301(u) hereof, the indebtedness represented by the
Securities of such series and the payment of principal of (and premium, if any)
and interest on each or all of the Securities of such series will be expressly
made subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
ARTICLE SEVENTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1701. Applicability of Article.
Whenever this Indenture provides for any distribution to
Holders of Securities of any series in which not all of such Securities are
denominated in the same Currency, in the absence of any provision to the
contrary in or pursuant to this Indenture or the Securities of such series, any
amount in respect of any Security denominated in a Currency other than Dollars
shall be treated for any such distribution as that amount of Dollars that could
be obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series, if any, for
such distribution (or, if there shall be no applicable record date, such other
date reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
-88-
<PAGE> 99
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-89-
<PAGE> 100
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE DIAL CORPORATION
By:__________________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By:___________________________________
Name:
Title:
Norwest Bank Arizona, N.A., Trustee
By:__________________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By:___________________________________
Name:
Title:
-90-
<PAGE> 101
STATE OF ARIZONA )
) ss.:
COUNTY OF )
On the _______ day of March, 1998, before me personally came
Malcolm Jozoff, to me known, who, being by me duly sworn, did depose and say
that he is the Chairman of the Board of Directors, President and Chief Executive
Officer of THE DIAL CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
____________________________________
Name:
Notary Public
State of Arizona
My Commission expires on
<PAGE> 102
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _______ day of March, 1998, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________ of Norwest Arizona Bank, N.A., one
of the national banking associations described in and which executed the
foregoing instrument; that he knows the seal of said national banking
association; that the seal affixed to said instrument is such seal; that it was
so affixed by authority of the Board of Directors of said national banking
association; and that he signed his name thereto by like authority.
___________________________________
Name:
Notary Public
State of New York
My Commission expires on
<PAGE> 1
EXHIBIT 5.1
212-859-8272
March 5, 1998 (FAX: 212-859-8587)
The Dial Corporation
15501 N. Dial Boulevard
Scottsdale, AZ 85260-1619
Ladies and Gentlemen:
We have acted as special counsel to The Dial Corporation, a
Delaware corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 (File No. 333- ) (together with any
amendments thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), covering $300,000,000 aggregate issue
amount of debt securities (the "Debt Securities") to be issued from time to time
by the Company. All capitalized terms used herein that are defined in, or by
reference in, the Registration Statement have the meanings assigned to such
terms therein or by reference therein, unless otherwise defined herein. With
your permission, all assumptions and statements of reliance herein have been
made without any independent investigation or verification on our part except to
the extent otherwise expressly stated, and we express no opinion with respect to
the subject matter or accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records of
the Company, such certificates of public officials and such other documents, and
(iii) received such information from officers and representatives of the Company
as we have deemed necessary or appropriate for the purposes of this opinion. We
have examined, among other documents, the following:
(a) Registration Statement; and
(b) Indenture.
<PAGE> 2
The Dial Corporation - 2 - March 5, 1998
The documents referred to in items (a) through (c) above, inclusive, are
referred to herein collectively as the "Documents".
In all such examinations, we have assumed the legal capacity
of all natural persons executing Documents, the genuineness of all signatures,
the authenticity of original and certified documents and the conformity to
original or certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the opinion
expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the Documents and certificates and
oral or written statements and other information of or from representatives of
the Company and others and assume compliance on the part of all parties to the
Documents with their covenants and agreements contained therein.
To the extent it may be relevant to the opinion expressed
herein, we have assumed that the parties to the Documents other than the Company
have the power and authority to enter into and perform such Documents and to
consummate the transactions contemplated thereby, that the documents have been
duly authorized, executed and delivered by, and constitute legal, valid and
binding obligations of such parties enforceable against such parties in
accordance with their terms, and that such parties will comply with all of their
obligations under the Documents and all laws applicable thereto.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that when
(i) the Registration Statement has become effective under the Securities Act,
(ii) the terms of the Debt Securities and their issue and sale have been duly
established in conformity with the Indenture so as not to violate any applicable
law or agreement or instrument then binding on the Company and (iii) the Debt
Securities have been duly executed and authenticated in accordance with the
terms of the Indenture and (iv) the Debt Securities have been issued and sold as
contemplated in the Registration Statement, the Debt Securities will constitute
valid and binding obligations of the Company.
We express no opinion as to the legality or binding effect of
any provision of the Debt Securities or the Indenture providing for payments
thereunder in a currency other than currency of the United States of America to
the extent that a court of competent jurisdiction, under applicable law, will
convert any judgment rendered in such other currency into currency of the United
States of America or to the extent that payment in a currency other than the
currency of the United States of America is contrary to applicable law. In this
connection, we note that, as of the date of this opinion, in the case of a Debt
Security denominated in
<PAGE> 3
The Dial Corporation - 3 - March 5, 1998
foreign currency, a state court in the State of New York rendering a judgment on
such Debt Security would be required under Section 27 of the New York Judiciary
Law to render such judgment in the foreign currency in which the Debt Security
is denominated, and such judgment would be converted into United States dollars
at the exchange rate prevailing on the date of entry of the judgment.
The opinion expressed herein is limited to the laws of the
United States of America and the laws of the State of New York and, to the
extent relevant to the opinion expressed above, the General Corporation Law of
the State of Delaware, as currently in effect. The opinion expressed herein is
given as of the date hereof, and we undertake no obligation to supplement this
letter if any applicable laws change after the date hereof or if we become aware
of any facts that might change the opinion expressed herein after the date
hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the
caption "Legal Matters" in the Prospectus and the caption "Legal Matters" in any
Prospectus Supplement forming a part of the Registration Statement to the extent
that a "Legal Matters" section is included in such Prospectus Supplement. In
giving these consents, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act.
The opinion expressed herein is solely for your benefit in
connection with the Registration Statement and may not be relied on in any
manner or for any purpose by any other person or entity and may not be quoted in
whole or in part without our prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ STUART H. GELFOND
-----------------------------------------
Stuart H. Gelfond
201309
<PAGE> 1
THE DIAL CORPORATION
EXHIBIT 12.1 -- COMPUTATION OF RATIO OF FIXED CHARGES
(000s OMITTED, EXCEPT FOR RATIOS)
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C>
Income (loss) before income taxes.............. $133,935 $42,423 $(47,016) $147,540 $133,304
FIXED CHARGES:
Interest expense............................... 20,435 19,973 25,683 16,409 9,250
Amortization of debt expense................... -- -- -- -- --
Interest portion of rent expense............... 1,960 1,139 970 996 975
Preferred stock dividend requirements.......... -- -- -- -- --
------- ------- ------- -------- -------
TOTAL FIXED CHARGES............................ 22,395 21,112 26,653 17,405 10,225
-------- ------- -------- -------- --------
ADJUSTED EARNINGS (LOSS)....................... $156,330 $63,535 $(20,363) $164,945 $143,529
======== ======= ======== ======== ========
RATIO OF ADJUSTED EARNINGS TO FIXED CHARGES.... 6.98 3.01 (1) 9.48 14.04
</TABLE>
(1) In the fiscal year 1995, fixed charges exceeded adjusted earnings by
approximately $47.0 million.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our report dated January 22, 1998, appearing in the Annual Report
on Form 10-K of The Dial Corporation for the year ended January 3, 1998 and to
the reference to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Phoenix, Arizona
<PAGE> 1
Exhibit 25.1
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)
NORWEST BANK ARIZONA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A NATIONAL BANKING ASSOCIATION 86-0069410
(Jurisdiction of incorporation or (I.R.S Employer
organization if not a U.S. national Identification No.)
bank)
3300 N. Central Avenue
Phoenix, Arizona 85012
(Address of principal executive offices) (Zip code)
Margaret M. Moore, Assistant Vice President
Norwest Bank Arizona, National Association
3300 N. Central Ave.
Phoenix, AZ 85012
(602) 248-2341
(Agent for Service)
The Dial Corporation
(Exact name of obligor as specified in its charter)
DELAWARE 51-0374887
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
15501 N. Dial Blvd
Scottsdale, Arizona 85260-1619
(Address of principal executive offices) (Zip code)
<PAGE> 2
$100,000,000
Senior Notes
(Title of the indenture securities)
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 the Currency
Treasury Department
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, as a national bank, to
exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-15 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 16. List of Exhibits. List below all exhibits filed as a part of
this Statement of Eligibility. Exhibits are
included with this form.
Exhibit 1. a. A copy of the articles of association of the
trustee now in effect. Incorporated by
reference to Exhibit 1 a. of Form T-1 filed
with registration statement number 33-62629.
Exhibit 2. a. Authorization of the trustee to commence
business contained in the articles of
association of the trustee now in effect.
Incorporated by reference to Exhibit 2 a.
of Form T-1 filed with registration
statement number 33-62629.
b. A copy of the letter of the Comptroller of
the Currency dated July 18, 1988, approving
the consolidation of the Norwest Capital
Management & Trust Company, Scottsdale,
Arizona under the title of Norwest Bank
Arizona, National Association. Incorporated
by reference to Exhibit 2 b. of Form T-1
filed with registration statement number
33-62629.
<PAGE> 3
c. A copy of the Resolution Establishing and
Appointing Trust Oversight Committee,
pursuant to the proper exercise of fiduciary
powers of the trustee under state and
federal law including 12 C.F.R. 9, dated
April 5, 1994. Incorporated by reference
to Exhibit 2 c. of Form T-1 filed with
registration statement number 33-62629.
d. A copy of the Authorization to Designate
Signers of Written Instruments, Documents
and Agreements,relating to authorizations
effective October 20, 1997.
e. A copy of the Resolution Relating to
Execution of Written Instruments, dated
July 22, 1996.
f. A copy of the Certificate of Norwest Bank
Arizona, National Association dated
March 3, 1998.
g. A copy of the Signing Authority for
Countersignatures of Bonds dated December 8,
1997.
Exhibit 3. a. Authorization of the trustee to exercise
corporate trust powers is contained in the
articles of association, by-laws of the
trustee and the Certificate of Norwest Bank
Arizona, National Association.
Exhibit 4. a. A copy of the existing by-laws of the
trustee. Incorporated by reference to
Exhibit 4 a. of Form T-1 filed with
registration Statement number 33-62629.
Exhibit 5. a. Not applicable.
Exhibit 6. a. The consent of the trustee required by
Section 321 (b) of the Act.
Exhibit 7. a. A copy of the latest report of condition of
the trustee published pursuant to law or the
requirement of its supervising or examining
authority, that is, the Consolidated Reports
of Condition and Income for A Bank With
Domestic Offices Only and Total Assets of
$300 Million or More - FFIEC 032 - report as
of close of business December 31, 1997.
Exhibit 8. a. Not applicable
<PAGE> 4
Exhibit 9. a. Not applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939. as amended, the
trustee, Norwest Bank Arizona, National Association, 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 Phoenix
and the State of Arizona on the 3rd day of March 1998.
NORWEST BANK ARIZONA,
NATIONAL ASSOCIATION
/s/ Margaret M. Moore
Margaret M. Moore
Assistant Vice President
