<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 13, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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USL CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-1360891
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
</TABLE>
733 FRONT STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 627-9000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
HENRY LERNER, ESQ.
733 FRONT STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 627-9586
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copy to:
PETER LILLEVAND, ESQ.
DANA MURPHY KETCHAM, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment
plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM
AMOUNT PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF SECURITIES TO BE AGGREGATE PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(1)(2) REGISTRATION FEE
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Debt Securities and Warrants to
Purchase Debt Securities............. $1,500,000,000 100% $1,500,000,000 $517,245
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</TABLE>
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(1) Or, (i) if any Debt Securities are issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial
offering price equal to $1,500,000,000 United States dollars or (ii) if any
Debt Securities or Warrants are issued with a principal amount denominated
in a foreign currency or composite currency, such principal amount as shall
result in an aggregate initial offering price equivalent to $1,500,000,000
United States dollars at the time of initial offering.
(2) Exclusive of accrued interest, if any. These figures are estimates made
solely for the purpose of calculating the registration fee.
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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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
PROSPECTUS
$1,500,000,000
USL CAPITAL CORPORATION
DEBT SECURITIES AND WARRANTS
USL Capital Corporation (the "Company") may offer from time to time its
debt securities consisting of debentures, notes, bonds and/or other evidences of
indebtedness ("Debt Securities") and warrants to purchase Debt Securities
("Warrants") with an aggregate initial public offering price of up to U.S.
$1,500,000,000 or the equivalent thereof in one or more foreign currencies or
composite currencies, including European Currency Units ("ECU"). The Debt
Securities and Warrants may be offered in separate series in amounts, at prices
and on terms to be set forth in supplements to this Prospectus (each a
"Prospectus Supplement"). The Debt Securities and Warrants may be sold for U.S.
dollars, one or more foreign currencies or amounts determined by reference to an
index, and the principal of and any interest on the Debt Securities may likewise
be payable in U.S. dollars, one or more foreign currencies or amounts determined
by reference to an index.
The terms of the Debt Securities and any Warrants, including, where
applicable, the specific designation, aggregate principal amount, initial public
offering price, currency, denomination, maturity, premium, rate (which may be
fixed or variable) and time of payment of interest, terms for redemption at the
option of the Company or the holder, for sinking fund payments, for payments of
additional amounts or for exercising the Warrants, will be set forth in the
applicable Prospectus Supplement.
The Debt Securities and Warrants may be sold through underwriting
syndicates led by one or more managing underwriters or through one or more
underwriters acting alone. The Debt Securities and Warrants may also be sold
directly by the Company or through agents designated from time to time. If any
underwriters or agents are involved in the sale of the Debt Securities or
Warrants, their names, the principal amount of Debt Securities or Warrants to be
purchased by them and any applicable fee, commission or discount arrangements
with them will be set forth in the Prospectus Supplement. See "Plan of
Distribution." With regard to the Warrants, if any, in respect of which this
Prospectus is being delivered, the applicable Prospectus Supplement will set
forth a description of the Debt Securities for which the Warrants are
exercisable and the offering price, if any, exercise price, duration,
detachability and any other specific terms of the Warrants.
The Debt Securities may be issued in registered form or bearer form with
coupons attached or both. In addition, all or a portion of the Debt Securities
of a series may be issuable in temporary or permanent global form. Debt
Securities in bearer form will be offered only to non-United States persons and
to offices located outside the United States of certain United States financial
institutions.
This Prospectus may not be used to consummate sales of Debt Securities or
Warrants unless accompanied by a Prospectus Supplement.
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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.
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The date of this Prospectus is December , 1994.
<PAGE> 3
INFORMATION INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1993, and its Quarterly Reports on Form 10-Q for the quarters ended March 31,
1994, June 30, 1994 and September 30, 1994, filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference. All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, after the date of this
Prospectus and prior to the termination of the offering of the Debt Securities
and Warrants offered hereby shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing such documents. Any
statements contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed to constitute a
part hereof, except as so modified or superseded.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents incorporated by
reference, other than exhibits to such documents. Requests should be directed to
Treasurer, USL Capital Corporation, 733 Front Street, San Francisco, California
94111 (telephone: 415-627-9000).
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports and
other information with the Commission. Such reports and other information can be
inspected and copied at Regional Offices of the Commission located at Northwest
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
7 World Trade Center, 13th Floor, New York, New York 10048; and at the public
reference facilities of the Commission located at 450 Fifth Street N.W.,
Washington, D.C. 20549. Copies of such material can be obtained from the public
reference facilities of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates.
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Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$", "dollars" or
"U.S. $").
The following information, which is being disclosed pursuant to Florida
law, is accurate as of the date of this Prospectus. Autolatina-Comercio,
Negocios e Participaces Ltda., a Brazilian company ("Autolina"), is a joint
venture between Ford Motor Company ("Ford"), an affiliate of the Company, and
Volkswagen AG in which Ford has a 49% ownership interest. Autolina occasionally
sells vehicles to persons located in Cuba. Each such sale is made pursuant to a
specific license granted to Ford by the U.S. Department of Treasury. The last
such sale, which involved one medical supply vehicle, was made to Cubanacan in
April 1991. Current information concerning Autolatina's or its Ford-related
affiliates' business dealings with the government of Cuba or with persons
located in Cuba may be obtained from the State of Florida Department of Banking
and Finance at The Capitol Building, Suite 1401, Tallahassee, Florida 32399-0350
(telephone number 904-488-0545).
2
<PAGE> 4
USL CAPITAL CORPORATION
USL Capital Corporation is a large and diversified commercial financing
company. The Company provides a wide range of financing services through six
core business units, including:
- Business Equipment Financing -- leasing and financing of office and
other business and commercial equipment directly with customers and
through vendor programs;
- Transportation and Industrial Financing -- leasing and financing of
large-balance transportation equipment (principally commercial aircraft)
and industrial and energy facilities;
- Fleet Services -- leasing and managing of commercial automobile, van and
light truck fleets;
- Municipal and Corporate Financing -- financing of essential-use
equipment for state and local governments and investing in publicly
traded and privately placed preferred stocks and senior and subordinated
debt of public and private companies;
- Real Estate Financing -- mortgage financing of income-producing real
estate, including apartments, office buildings, shopping centers and
warehouses; and
- Rail Services -- full-service leasing of railroad equipment to
industrial shippers and railroads.
Through these core business units, the Company operates principally in the
United States.
The Company, a Delaware corporation, has been a wholly owned subsidiary of
Ford Holdings, Inc. ("Ford Holdings") since October 1, 1989, on which date all
of the Company's capital stock was transferred by Ford to Ford Holdings, a then
newly formed Delaware corporation. All of the outstanding common stock of Ford
Holdings, representing 75% of the combined voting power of all classes of its
capital stock, is owned by Ford and Ford Motor Credit Company ("Ford Credit"), a
wholly owned subsidiary of Ford. The balance of the capital stock, consisting of
shares of Flexible Rate Auction Preferred Stock, accounts for the remaining 25%
of the total voting power. The Company changed its name from United States
Leasing International, Inc. to USL Capital Corporation on November 12, 1993 and
was originally organized as a California corporation on October 1, 1956. The
Company was purchased by Ford on November 18, 1987.
The principal executive offices of the Company are located at 733 Front
Street, San Francisco, California 94111 (telephone (415) 627-9000).
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement, the Company
intends to use the net proceeds of the Debt Securities and Warrants for general
corporate purposes, principally to reduce short-term borrowings incurred
primarily for the purchase of equipment for lease to others and to fund other
commercial financing transactions. In addition, proceeds may be used to fund
possible future acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges has been computed by dividing income
before taxes on income and fixed charges (after eliminating equity in
undistributed net income of associated companies, and related foreign exchange
gains or losses) by fixed charges. Fixed charges consist of interest,
amortization of debt issue cost and discount or premium, and one-third of
rentals (representing the estimated interest factor of such rentals).
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
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1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges.......................... 1.67 1.61 1.63 1.57 1.57 1.42 1.22
</TABLE>
3
<PAGE> 5
DESCRIPTION OF THE 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 and summaries of certain provisions of the
Indenture, which do not purport to be complete and are qualified in their
entirety by reference to the provisions of the Indenture. The particular terms
of the Debt Securities offered by any Prospectus Supplement 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 Debt
Securities. The Debt Securities are to be issued under an Indenture dated as of
November 15, 1994 (the "Indenture") between the Company and The Chase Manhattan
Bank (National Association), as Trustee (the "Trustee"). The form of the
Indenture (as defined below) is an exhibit to the Registration Statement.
Numerical references in parentheses below are to sections of the Indenture
and, unless otherwise indicated, capitalized terms shall have the meanings
ascribed to them in the Indenture.
GENERAL
Debt Securities and Warrants offered by this Prospectus will be limited to
an aggregate initial public offering price of U.S. $1,500,000,000 or the
equivalent thereof in one or more foreign currencies or composite currencies
(including ECU). The Indenture provides that Debt Securities in an unlimited
amount may be issued thereunder from time to time in one or more series.
(Section 301)
The Debt Securities will be unsecured and will rank on a parity with each
other and with all other unsecured and unsubordinated indebtedness of the
Company.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Debt Securities offered thereby:
(1) the title of the Debt Securities; (2) any limit on the aggregate principal
amount of the Debt Securities; (3) whether the Debt Securities are to be
issuable as Registered Securities or Bearer Securities or both, whether the Debt
Securities are to be issuable with or without coupons or both, whether any
Bearer Securities will be subject to any limitations on offering, sale and
distribution, whether any of the Debt Securities are to be issuable initially in
temporary global form and whether any of the Debt Securities are to be issuable
in permanent global form; (4) the price or prices (expressed as a percentage of
the aggregate principal amount thereof) at which the Debt Securities will be
issued; (5) the date or dates on which the Debt Securities will mature; (6) the
rate or rates at which the Debt Securities will bear interest, if any, or the
formula pursuant to which such rate or rates shall be determined, and the date
or dates from which any such interest will accrue; (7) the Interest Payment
Dates on which any such interest on the Debt Securities will be payable, and the
Regular Record Date for any interest payable on any Debt Securities which are
Registered Securities on any Interest Payment Date; (8) the manner in which or
the person to whom any interest on any Registered Security will be payable if
other than the person in whose name such Registered Security is registered at
the close of business on the Regular Record Date for such interest as described
under "Payment and Paying Agents" below, the manner in which, or the person to
whom, any interest on any Bearer Security will be paid if other than in the
manner described under "Payment and Paying Agents" below and the extent to
which, or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the manner
described under "Temporary Global Securities" below; (9) the obligation, if any,
of the Company to redeem or purchase Debt Securities pursuant to any mandatory
or optional sinking fund or analogous provisions and the other detailed terms
and provisions upon which the Debt Securities shall be redeemed or purchased in
whole or in part, pursuant to such obligation; (10) each office or agency where,
subject to the terms of the Indenture as described below under "Payment and
Paying Agents," the principal of and any premium and interest on the Debt
Securities will be payable and each office or agency where, subject to the terms
of the Indenture as described under "Form, Exchange, Registration and Transfer"
below, the Debt Securities may be presented for registration of transfer or
exchange; (11) the date, if any, after which and the price or prices at which
the Debt Securities may be redeemed, in whole or in part at the option of the
Company or the Holder, or pursuant to mandatory redemption provisions, and the
other detailed terms and provisions of any such optional or mandatory redemption
provisions; (12) the denominations in which any Debt Securities will be
issuable;
4
<PAGE> 6
(13) the currency or currencies, including composite currencies, of payment of
principal of and any premium and interest on the Debt Securities if other than
the currency of the United States of America, and the agency or organization
responsible for overseeing such composite currency; (14) if the principal of and
any premium or interest on the Debt Securities are to be payable, at the
election of the Company or the Holder, in a currency or currencies, including
composite currencies, other than that or those in which the Debt Securities are
stated to be payable, the currency or currencies in which payment of the
principal of and any premium and interest on the Debt Securities as to which
such election is made shall be payable and the other detailed terms and
conditions upon which such election is to be made; (15) any index used to
determine the amount of payments of principal of and any premium and interest on
the Debt Securities; (16) the portion of the principal amount of the Debt
Securities, if other than the principal amount thereof, payable upon
acceleration of maturity thereof; (17) the application, if any, of either or
both of the defeasance or covenant defeasance sections of the Indenture as
described below under "Defeasance and Covenant Defeasance" to the Debt
Securities; (18) the Person who shall be the Security Registrar for Debt
Securities issuable as Registered Securities, if other than the Trustee, the
Person who shall be the initial Paying Agent and the Person who shall be the
initial Common Depositary or the depositary, as the case may be; (19) any other
terms of the Debt Securities not inconsistent with the provision of the
Indenture; and (20) the terms of any Warrants offered together with such Debt
Securities. Any such Prospectus Supplement will also describe any special
provisions for the payment of additional amounts with respect to the Debt
Securities of such series.
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount below their stated principal amounts. Special
United States federal income tax considerations applicable to Debt Securities
issued at an original issue discount will be set forth in the Prospectus
Supplement relating thereto. Special United States tax considerations applicable
to any Debt Securities that are denominated in a currency other than United
States dollars or that use an index to determine the amount of payments of
principal of and any premium and interest on the Debt Securities will be set
forth in a Prospectus Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in an applicable
Prospectus Supplement, definitive Bearer Securities (other than Bearer
Securities in global form) will have interest coupons attached. (Section 201)
The Indenture also will provide that Bearer Securities of a series may be
issuable in permanent global form. (Section 201) See "Permanent Global
Securities." If Bearer Securities are being offered, the applicable Prospectus
Supplement will set forth various limitations on their offering, sale and
distribution.
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of authorized denominations and of a
like aggregate principal amount and tenor. In addition, if Debt Securities of
any series are issuable as both Registered Securities and Bearer Securities, at
the option of the Holder upon request confirmed in writing, and subject to the
terms of the Indenture, Bearer Securities (with all unmatured coupons, except as
provided below, and all matured coupons in default) of such series will be
exchangeable into Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. Bearer
Securities surrendered in exchange for Registered Securities between the close
of business on a Regular Record Date or a Special Record Date and the relevant
date for payment of interest shall be surrendered without the coupon relating to
such date for payment of interest and interest will not be payable in respect of
the Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the terms
of the Indenture. Bearer Securities will not be issued in exchange for
Registered Securities. (Section 305) Each Bearer Security other than a temporary
global Bearer Security will bear a legend substantially to the following effect:
"Any United States Person who holds this obligation will be subject to
limitations under the United States income tax laws including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code."
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than a Debt Security issued in global form) may be
presented for registration of transfer (with the form of transfer
5
<PAGE> 7
endorsed thereon duly executed), at the office of the Security Registrar or at
the office of any transfer agent designated by the Company for such purpose with
respect to any series of Debt Securities and referred to in an applicable
Prospectus Supplement, without service charge and upon payment of any taxes and
other governmental charges as described in the Indenture. Such transfer or
exchange will be effected upon the Security Registrar or such transfer agent, as
the case may be, being satisfied with the documents of title and identity of the
person making the request. Unless the Prospectus Supplement provides otherwise,
the Trustee will be the initial Security Registrar for the Debt Securities.
(Sections 101 and 305) If a Prospectus Supplement refers to any transfer agents
(in addition to the Security Registrar) initially designated by the Company with
respect to any series of Debt Securities, the Company may at any time rescind
the designation of any such transfer agent or approve a change in the location
through which any such transfer agent (or Security Registrar) acts, except that,
if Debt Securities of a series are issuable solely as Registered Securities, the
Company will be required to maintain a transfer agent in each Place of Payment
for such series and, if Debt Securities of a series are issuable as Bearer
Securities, the Company will be required to maintain (in addition to the
Security Registrar) a transfer agent in a Place of Payment for such series
located outside the United States. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities.
(Section 1002)
The Company shall not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before (a) if Debt Securities of the series are issuable
only as Registered Securities, the day of mailing of the relevant notice of
redemption and ending at the close of business on the day for such mailing and
(b) if Debt Securities of the series are issuable as either Bearer Securities or
Registered Securities, the earlier of the day of the first publication of the
relevant notice of redemption or the mailing of the relevant notice of
redemption and ending on the close of business on such earlier day; (ii)
register the transfer of or exchange any Registered Security, or portion
thereof, called for redemption, except the unredeemed portion of any Security
being redeemed in part; or (iii) exchange any Bearer Security called for
redemption, except to exchange such Bearer Security for a Registered Security or
coupon, as the case may be, of the same series and like tenor which is
simultaneously surrendered for redemption. (Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Bearer Securities will be
payable, subject to any applicable laws and regulations, at the offices of such
Paying Agents outside the United States as the Company may designate from time
to time or, at the option of the Holder, by a check or by transfer to an account
maintained by the payee with a bank located outside the United States. (Section
1002) Unless otherwise indicated in an applicable Prospectus Supplement, payment
of interest on Bearer Securities on any Interest Payment Date will be made only
against surrender outside the United States, to a Paying Agent, of the coupon
relating to such Interest Payment Date. (Section 1001 and 1002) No payment with
respect to any Bearer Security will be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States. Notwithstanding the foregoing, payments of principal of and any premium
and interest on Bearer Securities denominated and payable in U.S. dollars will
be made at the office of the Company's Paying Agent in the Borough of Brooklyn,
The City of New York, if (but only if) payment of the full amount thereof in
U.S. dollars at all offices or agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions.
(Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company payment of
any interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any installment of
interest on Registered Securities will be made to the Person in whose name such
Registered Security is registered at the close of business on the Regular Record
Date for such interest. (Sections 307 and 1001)
6
<PAGE> 8
Any Paying Agents outside the United States and any other Paying Agents in
the United States initially designated by the Company for the Debt Securities
will be named in an applicable Prospectus Supplement. The Company may at any
time designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that, if Debt Securities of a series are issuable solely as Registered
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Company will be required to maintain (i) a
Paying Agent in the Borough of Brooklyn, The City of New York, for payments with
respect to any Registered Securities of the series (and for payments with
respect to Bearer Securities of the series in the limited circumstances
described above, but not otherwise), and (ii) a Paying Agent in a Place of
Payment located outside the United States where Debt Securities of such series
and any coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
or the Luxemborg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent in London or Luxemborg or any other required city
located outside the United States, as the case may be, for the Debt Securities
of such series. (Section 1002)
All moneys paid by the Company to a Paying Agent or held by the Company in
trust for the payment of principal of and any premium or interest on any Debt
Security, which remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable, will be discharged from
trust and repaid to the Company and the Holder of such Debt Security or any
coupon will thereafter, as an unsecured general creditor, look only to the
Company for payment thereof. (Section 1003)
TEMPORARY GLOBAL SECURITIES
If so specified in an applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary global Securities to be
deposited with a common depositary for Morgan Guaranty Trust Company of New
York, Brussels Office, as operator of the Euroclear System ("Euroclear") and
Cedel S.A. ("Cedel") for credit to the designated accounts. On and after the
date determined as provided in any such temporary global Security and described
in an applicable Prospectus Supplement, each such temporary global Security will
be exchangeable for definitive Bearer Securities, definitive Registered
Securities or all or a portion of a permanent global Bearer Security, or any
combination thereof, as specified in an applicable Prospectus Supplement, only
under the circumstances set forth in the accompanying pricing supplement to such
Prospectus Supplement. No definitive Bearer Security delivered in exchange for a
portion of a temporary global Security shall be mailed or otherwise delivered to
any location in the United States in connection with such exchange. (Section 303
and 304) Any special restrictions on delivery of a Debt Security issued in
permanent global form will be set forth in a Prospectus Supplement relating
thereto.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the distribution procedures
applicable to such securities in permanent global form (including any applicable
certification requirements) and the circumstances, if any, under which
beneficial owners of interests in any such permanent global Security may
exchange such interests for Debt Securities of such series and of like tenor and
principal amount of any authorized form and denomination. (Section 305) A Person
will, except with respect to payment of principal of and any premium and
interest on such permanent global Security, be treated as a Holder of such
principal amount of Outstanding Securities represented by such permanent global
Security as shall be specified in a written statement of the Holder of such
permanent global Security. (Section 203) Principal of and any premium and
interest on a permanent global Security will be payable in the manner described
in the applicable Prospectus Supplement.
CERTAIN COVENANTS OF THE COMPANY
Limitations on Liens. The Indenture provides that the Company will not
create or permit to continue in existence any Lien upon any of the Property of
the Company to secure Indebtedness of the Company other
7
<PAGE> 9
than (i) Liens securing taxes, assessments or governmental charges or levies or
the claims or demands of materialmen, mechanics, carriers, warehousemen,
landlords and other like persons; (ii) Liens incurred or deposits made in the
ordinary course of business (a) in connection with worker's compensation,
unemployment insurance, social security and other like laws or (b) to secure the
performance of letters of credit, bids, tenders, sales contracts, leases,
statutory obligations, surety, appeal and performance bonds and other similar
obligations not incurred in connection with the borrowing of money, the
obtaining of advances or the payment of the deferred purchase price of Property;
(iii) attachments, judgments and other similar liens arising in connection with
court proceedings, provided that the execution or other enforcement of such
liens is effectively stayed and the claims secured thereby are being actively
contested in good faith; (iv) any purchase money mortgage or other Lien on
Property acquired or constructed by the Company, or any mortgage or other Lien
created on such Property within 90 days after its acquisition or construction,
which secures Indebtedness (as defined below) representing all or a portion of
the purchase price or construction costs thereof; (v) any lease of Property in
which the Company is the lessee, other than a lease which is part of a sale and
leaseback transaction not entered into in the ordinary course of business; (vi)
Liens on Property subject to lease by the Company to others (including Liens on
the rights of the Company under such lease) in respect of which the holder of
the Indebtedness has no recourse against the Company except recourse to such
Property or to the proceeds from any sale or lease of such Property; (vii) Liens
on any Property existing at the time of acquisition of such Property (including
acquisition through merger or consolidation); (viii) Liens on Property or shares
of stock of a corporation at the time the corporation becomes a Subsidiary or
merges into or consolidates with the Company or a Subsidiary; (ix) Liens
securing indebtedness of a Subsidiary owing to the Company or another
Subsidiary; (x) Liens on Property which has been transferred by the Company in a
transaction which has been accounted for as a sale under generally accepted
accounting principles; (xi) exclusive of any other Lien permitted, other Liens,
provided that the outstanding aggregate principal amount of the Indebtedness of
the Company secured by all such other Liens shall not at any time exceed an
amount equal to 5% of the total assets of the Company after deducting its
intangible assets, all determined on a consolidated basis in accordance with
generally accepted accounting principles, consistently applied; and (xii) an
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien or Liens referred to in the
foregoing provisions provided, however, that such extension, renewal or
replacement Lien shall be limited to all or a part of the same Property that
secured the Lien or Liens extended, renewed or replaced (plus improvements on
such property). In the event the Company creates or permits to continue a
non-permitted Lien, the Company will cause the Debt Securities to be secured
equally and ratably with all other obligations secured by such Lien. (Section
1007)
"Indebtedness" of any Person is defined in the Indenture as all obligations
thereof for (i) money borrowed, which obligations are incurred, assumed or
guaranteed by such Person and (ii) the present value of all payments due under
any lease or under any other arrangement for retention of title if such lease or
other arrangement is a financing lease under generally accepted accounting
principles which, in the case of (i) or (ii) above, in accordance with generally
accepted accounting principles, would be classified as liabilities in the
accounts of such Person or for which, in accordance with such principles, a
reserve would be set up in such accounts. The amount of any Indebtedness shall
equal the aggregate amount of such liabilities and reserves as reflected on such
Person's balance sheet at the date of any determination.
Limitations on Mergers. The Indenture provides that if any merger or
consolidation of the Company with or into any other corporation or any
conveyance or transfer to any person of all or substantially all of the property
or assets of the Company would subject any of the property or assets of the
Company owned immediately prior to such consolidation, merger, conveyance or
transfer to any mortgage, pledge, lien, lease, charge or other security
interest, the Company will, prior to such consolidation, merger, conveyance or
transfer, secure the Debt Securities, equally and ratably with any other Debt of
the Company then entitled to be so secured, by a direct lien on all such
property or assets equal to and ratable with all Liens other than any
theretofore existing thereon. (Section 803)
ABSENCE OF RESTRICTIVE COVENANTS AND EVENT RISK PROVISIONS
The Indenture does not contain any provision which will restrict the
Company in any way from paying dividends or making other distributions on its
capital stock or purchasing or redeeming any of its capital stock,
8
<PAGE> 10
or from incurring, assuming or becoming liable upon any type of debt or other
obligations of the Company. The Indenture does not contain any financial ratios
or specified levels of net worth or liquidity to which the Company must adhere.
In addition, the Indenture does not contain any provisions which would require
the Company to repurchase or redeem or otherwise modify the terms of any of its
Debt Securities upon a change in control or other events involving the Company
which may adversely affect the creditworthiness of the Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Securities under the Indenture, may consolidate with or merge into, or convey or
transfer its assets substantially as an entirety to, any Person that is a
corporation, partnership or trust organized and existing under the laws of any
domestic jurisdiction, provided that any successor Person assumes the Company's
obligations on the Debt Securities and under the Indenture, that after giving
effect to the transaction no Event of Default and no event which, after notice
or lapse of time, would become an Event of Default shall have occurred and be
continuing, and that certain other conditions are met. (Section 801)
DEFAULTS AND CERTAIN RIGHTS ON DEFAULT
An Event of Default with respect to any series of Debt Securities is
defined in the Indenture as being any of the following events and such other
event as may be established for the Debt Securities of such series: (i) default
for 30 days in any payment of interest on any Debt Security of such series; (ii)
default with respect to any Debt Security of such series in any payment of
principal or premium, if any, when due; (iii) default in the deposit of any
sinking fund instalment when due; (iv) default in performance of any other
covenant in the Indenture for 30 days after notice to the Company by the Trustee
or the Holders of 25% in principal amount of the Debt Securities of such series
then outstanding; (v) default for 10 days after notice in respect of any
Indebtedness of the Company or any Subsidiary as a result of which such
Indebtedness shall be declared due and payable prior to maturity; or (vi)
certain events in bankruptcy, insolvency or reorganization. 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. (Section 501) In case an Event of
Default shall occur and be continuing with respect to any series of Debt
Securities, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of the series then outstanding may
declare the principal of such series (or a portion of the principal amount in
the case of certain discounted Debt Securities) to be due and payable. (Section
502) Any Event of Default with respect to a particular series of Debt Securities
may be waived by the Holders of a majority in aggregate principal amount of the
outstanding Debt Securities of such series, except in each case a failure with
respect to any Debt Security to pay principal, premium, if any, or interest, if
any. (Section 513)
The Indenture requires the Company to file annually with the Trustee an
Officers' Certificate as to the absence of certain defaults under the terms of
the Indenture. (Section 1005) The Indenture provides that the Trustee may
withhold notice to the Holders of the Debt Securities of a particular series of
any default (except in payment of principal, premium, if any, or interest, if
any, or in the payment of any sinking fund installment) with respect to such
series of Debt Securities if it considers it in the interest of the Holders of
such series of Debt Securities to do so. (Section 602)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Indenture
provides that the Trustee shall be under no obligation to exercise any of its
rights or powers under the Indenture at the request, order or direction of the
Holders of the Debt Securities unless such Holders shall have offered to the
Trustee reasonable indemnity. (Section 603) Subject to such provisions for
indemnification and certain other rights of the Trustee, the Indenture provides
that the Holders of a majority in principal amount of the outstanding Debt
Securities of a particular series affected 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 Debt Securities of such series. (Section 512)
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<PAGE> 11
MEETINGS, MODIFICATION AND WAIVER
Except as to certain modifications and amendments not adverse to holders of
Debt Securities, modifications and amendments of certain restrictive provisions
under the Indenture may be made only 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 Security affected thereby: (i) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Debt
Security or related coupon, (ii) reduce the principal amount of, or premium or
interest on, any Debt Security or related coupon or any premium payable upon the
redemption thereof, (iii) change any obligation of the Company to pay additional
amounts, (iv) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the Maturity thereof, (v) change the coin
or currency in which any Debt Security or any premium or interest thereon is
payable, (vi) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security, (vii) reduce the percentage in
principal amount of Outstanding Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indenture or for waiver
of compliance with certain provisions of the Indenture or for waiver of certain
defaults, (viii) reduce the requirements contained in the Indenture for quorum
or voting, (ix) change any obligation of the Company to maintain an office or
agency in the places and for the purposes required by the Indenture, (x)
adversely affect the right of repayment, if any, of the Debt Securities at the
option of the Holders thereof, or (xi) modify any of the above provisions.
(Section 902)
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of each series may, on behalf of all Holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
(Section 1009) The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of each series may, on behalf of all
Holders of Debt Securities of that series and any coupons appertaining thereto,
waive any past default and its consequences under the Indenture with respect to
Debt Securities of that series, except a default (i) in the payment of principal
of (or premium, if any) or any interest on any Debt Security or coupon of such
series, and (ii) in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series or coupon affected. (Section 513)
The Indenture provides 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 thereunder or
whether a quorum is present at a meeting of Holders of Debt Securities or the
number of votes entitled to be cast by the Holder of any Debt Security (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof, (ii) the principal amount of a Debt Security denominated in a
foreign currency or a composite currency shall be the U.S. dollar equivalent,
determined as of the date of original issuance of such Debt Security by the
Company in good faith, of the principal amount of such Debt Security (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent,
determined as of the date of original issuance of such Debt Security, of the
amount determined as provided in (i) above) and (iii) except as specified in the
Indenture, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding. (Section 101)
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series. (Section 1301) A meeting may be called at any time
by the Trustee, and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Securities of such series, in
any such case upon notice given in accordance with "Notices" below. (Section
1302) Except for any consent which must be given by the Holder of each
Outstanding Security affected thereby, as described above, any resolution
presented at a meeting or adjourned meeting at which a quorum (as described
below) is present may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, any resolution with respect to any consent or waiver
which must be given by the Holders of not less than 66 2/3% in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened at which a quorum is present only by the
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<PAGE> 12
affirmative vote of the Holders of not less than 66 2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of 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 the Indenture will be binding on all Holders of
Securities of that series and the related coupons. The quorum at any meeting
called to adopt a resolution, and at any reconvened meeting, will be persons
holding or representing a majority in principal amount of the Outstanding
Securities of a series; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which must be given by the
Holders of not less than 66 2/3% in principal amount of the Outstanding
Securities of a series, the persons holding or representing 66 2/3% in principal
amount of the Outstanding Securities of such series will constitute a quorum.
(Section 1304)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, unless the Company elects otherwise pursuant to
Section 301 of the Indenture with respect to the Debt Securities of any series,
that the Company may elect either (i) to defease and be discharged from any and
all obligations with respect to such Debt Securities (except for the obligations
to register the transfer or exchange of such Debt Securities, to replace
temporary or mutilated, destroyed, lost or stolen Debt Securities, to maintain
an office or agency in respect of the Debt Securities and to hold moneys for
payment in trust) ("defeasance") or (ii) to be released from its obligations
with respect to such Debt Securities under Sections 1006, 1007 and 1008 of the
Indenture ("covenant defeasance"), in either case upon the deposit with the
Trustee (or other qualifying trustee), in trust for such purpose, of money,
and/or U.S. Government Obligations which through the payment of principal and
interest in accordance with their terms will provide money, in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities, and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor and any amounts that may be payable at the option
of the Holder on any Repayment Date. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) to the effect that the Holders of such
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant defeasance
had not occurred and, in the case of Bearer Securities, there will be no adverse
federal tax consequences to the Holders of such Bearer Securities as a result of
such defeasance or covenant defeasance. Such opinion, in the case of defeasance
under clause (i) above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable federal income tax law occurring after
the date of the Indenture. In the case of covenant defeasance, such termination
will not relieve the Company of its obligation to pay when due the principal of
or interest on the Debt Securities of such series if the Debt Securities of such
series are not paid from the money or U.S. Government Obligations held by the
Trustee for the payment thereof. The Prospectus Supplement may further describe
the provisions, if any, permitting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series. (Article Fourteen)
NOTICES
Except as otherwise provided in the Indenture, notices to Holders of Bearer
Securities will be given by publication at least twice in a daily newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities. Notices to Holders of Registered Securities will be given by
mail to the addresses of such Holders as they appear in the Security Register.
(Sections 101 and 106)
TITLE
Title to any Bearer Securities and any coupons appertaining thereto will
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
and the registered owner of any Registered Security as the absolute owner
thereof
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<PAGE> 13
(whether or not such Debt Security or coupon shall be overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes. (Section 308)
REPLACEMENT OF DEBT SECURITIES AND COUPONS
Any mutilated Debt Security or a Debt Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
Holder upon surrender of such Debt Security to the Trustee. Debt Securities or
coupons that become destroyed, stolen or lost will be replaced by the Company at
the expense of the Holder upon delivery to the Trustee of the Debt Security,
coupon or coupons or evidence of the destruction, loss or theft thereof
satisfactory to the Company and the Trustee; in the case of any coupon which
becomes destroyed, stolen or lost, such coupon will be replaced by issuance of a
new Debt Security in exchange for the Debt Security to which such coupon
appertains. In the case of a destroyed, lost or stolen Debt Security or coupon
an indemnity satisfactory to the Trustee and the Company may be required at the
expense of the Holder of such Debt Security or coupon before a replacement Debt
Security will be issued. (Section 306)
CONCERNING THE TRUSTEE
The Trustee has from time to time made loans to the Company and has
performed other services for the Company in the normal course of its business
and the Company expects to continue to conduct such transactions with the
Trustee. Under the provisions of the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), upon the occurrence and continuance of a default
under an indenture, if a trustee has a conflicting interest (as defined in the
Trust Indenture Act) the trustee must, within 90 days, either eliminate such
conflicting interest or resign. Under the provisions of the Trust Indenture Act,
an indenture trustee shall be deemed to have a conflicting interest if, upon the
occurrence of a default under the indenture, the trustee is a creditor of the
obligor. If the trustee fails either to eliminate the conflicting interest or to
resign within 10 days after the expiration of such 90-day period, the trustee is
required to notify security holders to this effect and any security holder who
has been a bona fide holder for at least six months may petition a court to
remove the trustee and to appoint a successor trustee.
DESCRIPTION OF WARRANTS
The following description of the terms of the Warrants sets forth certain
general terms and provisions of the Warrants to which any Prospectus Supplement
may relate. The particular terms of the Warrants offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Warrants so offered will be described in the Prospectus Supplement relating
to such Warrants.
Warrants may be offered independently or together with any series of Debt
Securities offered by a Prospectus Supplement and may be attached to or separate
from such Debt Securities. Each series of Warrants will be issued under a
separate warrant agreement (a "Warrant Agreement") to be entered into between
the Company and a bank or trust company, as Warrant Agent (the "Warrant Agent"),
all as set forth in the Prospectus Supplement relating to such series of
Warrants. The Warrant Agent will act solely as the agent of the Company in
connection with the certificates for the Warrants (the "Warrant Certificates")
of such series and will not assume any obligation or relationship of agency or
trust for or with any holders of Warrant Certificates or beneficial owners of
Warrants. Copies of the forms of Warrant Agreements, including the forms of
Warrant Certificates, are filed as an exhibit to the Registration Statement to
which this Prospectus pertains. The following summaries of certain provisions of
the forms of Warrant Agreements and Warrant Certificates do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Warrant Agreements and the Warrant Certificates.
GENERAL
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Warrants, if any, offered thereby for the terms of such
Warrants including, where applicable: (i) the offering price; (ii) the
currencies in which such Warrants are being offered; (iii) the designation,
aggregate principal amount, currencies, denominations and terms of the series of
Debt Securities purchasable upon exercise of such
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<PAGE> 14
Warrants; (iv) the designation and terms of the series of Debt Securities with
which such Warrants are being offered and the number of such Warrants being
offered with each such Debt Security; (v) the date on and after which such
Warrants and the related series of Debt Securities will be transferable
separately; (vi) the principal amount of the series of Debt Securities
purchasable upon exercise of each such Warrant and the price at which and
currencies in which such principal amount of Debt Securities of such series may
be purchased upon such exercise; (vii) the date on which the right to exercise
such Warrants shall commence and the date (the "Expiration Date") on which such
right shall expire; (viii) federal income tax consequences; and (ix) any other
terms of such Warrants.
Warrant Certificates of each series will be in registered form and will be
exchangeable at the option of the holder thereof for Warrant Certificates of
such series of like tenor representing in the aggregate the number of Warrants
surrendered for exchange. Warrant Certificates of each series will be
transferable upon surrender without service charge, subject to the payment of
any taxes or other governmental charges due in respect of a transfer, and will
be exchangeable and transferable at the corporate trust office of the Warrant
Agent or any other office indicated in the Prospectus Supplement relating to
such series of Warrants. Prior to the exercise of their Warrants, holders of
Warrants will not have any of the rights of holders of the series of Debt
Securities purchasable upon such exercise, including the right to receive
payments of principal of, premium, if any, or interest on the series of Debt
Securities purchasable upon such exercise, or to enforce any of the covenants in
the Indenture.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase such principal
amount of the related series of Debt Securities at such exercise price as shall
in each case be set forth in, or calculable as set forth in, the Prospectus
Supplement relating to such Warrant. Warrants of a series may be exercised at
the corporate trust office of the Warrant Agent for such series of Warrants (or
any other office indicated in the Prospectus Supplement relating to such series
of Warrants) at any time prior to 5:00 P.M., New York City time, on the
Expiration Date set forth in the Prospectus Supplement relating to such series
of Warrants. After the close of business on the Expiration Date relating to such
series of Warrants (or such later date to which such Expiration Date may be
extended by the Company), unexercised Warrants of such series will become void.
Warrants of a series may be exercised by delivery to the appropriate
Warrant Agent of payment, as provided in the Prospectus Supplement relating to
such series of Warrants, of the amount required to purchase the principal amount
of the series of Debt Securities purchasable upon such exercise, together with
certain information as set forth on the reverse side of the Warrant Certificate
evidencing such Warrants. Such Warrants will be deemed to have been exercised
upon receipt of the exercise price, subject to the receipt within five business
days of such Warrant Certificate. Upon receipt of such payment and such Warrant
Certificate, properly completed and duly executed, at the corporate trust office
of the appropriate Warrant Agent (or any other office indicated in the
Prospectus Supplement relating to such series of Warrants), the Company will, as
soon as practicable, issue and deliver the principal amount of the series of
Debt Securities purchasable upon such exercise. If fewer than all of the
Warrants represented by such Warrant Certificate are exercised, a new Warrant
Certificate will be issued for the remaining amount of Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities and the Warrants separately or
together (i) to one or more underwriters for public offering and sale by them
and (ii) to investors directly or through agents. The distribution of the Debt
Securities and the Warrants may be effected from time to time in one or more
transactions at a fixed price or prices (which may be changed from time to
time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Debt Securities and
the Warrants offered thereby.
In connection with the sale of the Debt Securities and the Warrants,
underwriters, dealers or agents may receive compensation from the Company or
from purchasers of the Debt Securities and the Warrants for whom they may act as
agents, in the form of discounts, concessions or commissions. The underwriters,
dealers
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<PAGE> 15
or agents which participate in the distribution of the Debt Securities and the
Warrants may be deemed to be underwriters under the Securities Act of 1933, as
amended, and any discounts or commissions received by them and any profit on the
resale of the Debt Securities and the Warrants received by them may be deemed to
be underwriting discounts and commissions thereunder. Any such underwriter,
dealer or agent will be identified and any such compensation received from the
Company will be described in the Prospectus Supplement. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
Under agreements that may be entered into with the Company, underwriters,
dealers and agents may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act of
1933, as amended, or to contribution with respect to payments which the
underwriters, dealers or agents may be required to make in respect thereof.
All Debt Securities and Warrants will be new issues of securities with no
established trading market. Any underwriters to whom Debt Securities or Warrants
are sold by the Company for public offering and sale may make a market in such
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any such securities.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for the Company and Ford in
the ordinary course of business.
VALIDITY
The validity of the Debt Securities and the Warrants is being passed upon
for the Company by Henry Lerner, Esq., Senior Vice President, General Counsel
and Secretary to the Company and certain legal matters will be passed upon for
any underwriters or agents by Orrick, Herrington & Sutcliffe, San Francisco,
California.
EXPERTS
The consolidated financial statements and related supplemental schedules of
USL Capital Corporation and subsidiary companies appearing in the Company's 1993
Annual Report on Form 10-K have been audited by Coopers & Lybrand L.L.P.,
independent accountants, as stated in their opinion thereon incorporated herein
by reference. Such financial statements and related schedules have been so
incorporated in reliance upon such opinion given upon the authority of that firm
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>
Registration fees......................................................... $517,245
Blue Sky fees and expenses*............................................... 20,000
Rating agency fees*....................................................... 227,000
Legal fees and expenses*.................................................. 75,000
Printing and engraving*................................................... 10,000
Accountant's fees and expenses*........................................... 45,200
Trustee's fees and expenses*.............................................. 50,000
Miscellaneous*............................................................ 5,555
--------
Total................................................................... $950,000
========
</TABLE>
- ---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 145 of the Delaware Corporation Law, the Company's
Certificate of Incorporation provides for indemnification of directors and
officers in certain cases to the full extent permitted by such law.
Indemnification is available when a person is made a party to any proceeding by
reason of the fact that he is or was a director or officer of the Company or a
director or officer of another enterprise, serving as such at the request of the
Company, and if he acted in good faith and in a manner reasonably believed by
him to be in, or not opposed to, the best interest of the Company. With respect
to any criminal proceeding, such person must have had no reasonable cause to
believe that his conduct was unlawful. If it is determined that the conduct of
such person meets these standards, he shall be indemnified for expenses incurred
and amounts paid in such proceeding if actually and reasonably incurred by him
in connection therewith.
There can be no indemnification with respect to any matter as to which such
person is adjudged to be liable to the Company for negligence or misconduct in
the performance of his duty; however, a court may, even in such case, allow
indemnification to such person for such expenses as the court deems proper.
Where such person is successful in any such proceeding, he is entitled to be
indemnified against expenses actually and reasonably incurred by him. In all
other cases, indemnification is made by the Company upon determination by it
that indemnification of such person is proper because he has met the applicable
standard of conduct.
The Company maintains directors' and officers' liability insurance which
insures directors and officers of the Company. The policy, to a relatively
limited extent, covers losses for which the Company shall be required or
permitted by law to indemnify directors and officers and which result from
claims made against such directors or officers based upon the commission of
wrongful acts in the performance of their duties. The policy also, to a
relatively limited extent covers losses which the directors or officers must pay
as the result of claims brought against them based upon the commission of
wrongful acts in the performance of their duties and for which they are not
indemnified by the Company. The policy is subject to certain exclusions and
deductible provisions.
II-1
<PAGE> 17
Reference is made to Section 6 of the Underwriting Agreement Standard
Provisions for Debt Securities and Warrants (November 1994) and Section 7 of the
Distribution Agreement each included herein as exhibits to the Registration
Statement for provisions regarding indemnification of the Company, officers,
directors and controlling persons against certain liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- -------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement
1.2 Form of Underwriting Agreement Standard Provisions for Debt Securities and Warrants
(December 1994)
1.3 Form of Distribution Agreement
4.1 Form of Indenture dated as of November 15, 1994 between Registrant and The Chase
Manhattan Bank (National Association), as Trustee
4.2 Form of Note
4.3 Form of Medium-Term Note
4.4 Form of Warrant Agreement (including form of Warrant Certificate)
5 Opinion of Henry Lerner, Esq. as to the validity of the Debt Securities and the
Warrants
12 Computation of ratio of earnings to fixed charges
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Henry Lerner, Esq. (contained in the opinion filed as Exhibit 5 to this
Registration Statement)
24 Powers of attorney (See p. II-4)
25 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of The Chase Manhattan Bank (National Association)
</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 the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that the undertakings in clauses
(i) and (ii) above shall not apply if the information required to be
included in a post-effective amendment by those clauses 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 into 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 post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-2
<PAGE> 18
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 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 herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above 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 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 against the registrant 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 question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on the 12th day
of December, 1994.
USL CAPITAL CORPORATION
By /s/ J.G. DUFF
-------------------------------
J.G. Duff
Principal Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Henry Lerner and John Hause or any one of them,
his or her attorney-in-fact for him or her in any and all capacities, to sign
any amendments to this Registration Statement and to file the same with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that any of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------------------ ---------------------------- ------------------
<S> <C> <C>
Principal Executive Officer:
/s/ J. G. DUFF Chairman, Chief Executive December 12, 1994
--------------------------------- Officer and Director
J. G. Duff
Principal Financial Officer:
/s/ G. F. STALLOS Chief Financial Officer and December 12, 1994
--------------------------------- Director
G. F. Stallos
Principal Accounting Officer:
/s/ ROBERT A. KEYES Vice President and Corporate December 12, 1994
--------------------------------- Controller
Robert A. Keyes
Directors:
/s/ K. WHIPPLE Director December 12, 1994
--------------------------------
K. Whipple
/s/ S. I. GILMAN Director December 12, 1994
--------------------------------
S. I. Gilman
</TABLE>
II-4
<PAGE> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ ------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement......................................................
1.2 Form of Underwriting Agreement Standard Provisions for Debt Securities and Warrants
(December 1994).....................................................................
1.3 Form of Distribution Agreement......................................................
4.1 Form of Indenture dated as of November 15, 1994 between Registrant and The Chase
Manhattan Bank (National Association), as Trustee...................................
4.2 Form of Note........................................................................
4.3 Form of Medium-Term Note............................................................
4.4 Form of Warrant Agreement (including form of Warrant Certificate)...................
5 Opinion of Henry Lerner, Esq. as to the validity of the Debt Securities and the
Warrants............................................................................
12 Computation of ratio of earnings to fixed charges...................................
23.1 Consent of Coopers & Lybrand L.L.P..................................................
23.2 Consent of Henry Lerner, Esq. (contained in the opinion filed as Exhibit 5 to this
Registration Statement).............................................................
24 Powers of attorney (See p. II-4)....................................................
25 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of The Chase Manhattan Bank (National Association).............................
</TABLE>
<PAGE> 1
EXHIBIT 1.1
UNDERWRITING AGREEMENT
[Date]
USL Capital Corporation
733 Front Street
San Francisco, California 94111
Dear Sirs:
We understand that USL Capital Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell [insert principal
amount and/or number of and title of Debt Securities (the "Offered Debt
Securities") and/or Warrants (the "Offered Warrants")] [to be sold in units
(the "Offered Units") each consisting of the amount of Offered Debt Securities
and Offered Warrants set forth in Schedule I hereto] (the "Offered Securities")
covered by Registration Statement No. 33- . The specific terms of the
Offered Securities are set forth on Schedule I hereto. Subject to the terms
and conditions set forth herein and incorporated by reference herein, the
Company hereby agrees to sell and each of the underwriters named on Schedule II
hereto (such underwriters being herein called the "Underwriters") agrees to
purchase, severally and not jointly, the respective [principal amounts]
[numbers] of Offered Securities set forth opposite such Underwriter's name on
Schedule II hereto at the purchase price set forth on Schedule I hereto [plus
accrued interest, if any, from ___________________________ to date of delivery.
[The Representatives have received at the time this Agreement
is executed a letter from Coopers & Lybrand L.L.P., independent public
accountants (or other independent accountants acceptable to the
Representatives), dated the date of this Agreement, to the effect set forth in
Exhibit A to the USL Capital Corporation Underwriting Agreement Standard
Provisions for Debt Securities and Warrants (December 1994), incorporated in
this Agreement.]
The Underwriters will pay for the Offered Securities upon
delivery thereof at the office of ,
, , at .M.
( time) on , 19 , or such other date, not later than
, 19 , as shall be mutually agreed upon, upon confirmation of
delivery to the Underwriters in New York City, or
<PAGE> 2
such other place as shall be mutually agreed upon, of one or more global
certificates for the Offered Securities registered in the name of Cede & Co.,
as nominee for The Depository Trust Company. Payment shall be made in Federal
Funds.
The Company agrees to have the global certificates
representing the Offered Securities available for inspection, checking and
packaging by the Underwriters in New York City, not later than 10:00 A.M. (New
York City time) on the business day next preceding the Closing Date.
If any one or more Underwriters shall fail to purchase and pay
for any of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
nondefaulting Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Offered Securities set forth opposite the names of all the nondefaulting
Underwriters) the Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Offered Securities set forth in Schedule II hereto, the
nondefaulting Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Offered Securities, and if such
nondefaulting Underwriters do not purchase all the Offered Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
paragraph, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this paragraph
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
[The Company will reimburse the Underwriters for their
out-of-pocket expenses, including counsel fees, in connection with the issuance
and sale of the Offered Securities pursuant to this Agreement.]
[Except as noted below,] All the provisions contained in the
document entitled USL Capital Corporation Underwriting Agreement Standard
Provisions for Debt Securities and Warrants (December 1994) (the "Standard
Provisions"), a copy of which we have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
2
<PAGE> 3
full herein. For purposes of the Standard Provisions, all references to the
Representatives shall mean:
.
Notices shall be sent to the Underwriters, in care of
, , ,
.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Please confirm your agreement by having your authorized
officers sign a copy of this Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
The Underwriters Listed on
Schedule II hereto
By
Accepted:
USL Capital Corporation
By
-----------------------------
Title:
By
-----------------------------
Title:
Dated:
--------------------
3
<PAGE> 4
SCHEDULE I
to
Underwriting Agreement dated , 19
Debt Securities
Title:
Principal amount and currency:
Public offering price and currency:
Purchase price and currency (include accrued interest and
amortization, if any):
Sinking fund provisions:
Redemption or repayment provisions:
Interest rate or interest rate formula:
Other provisions:
Warrants
Title:
Number:
Warrant exercise price and currency:
Public offering price and currency:
Purchase price and currency:
Principal amount and currency of Warrant Securities
issuable upon exercise of one Warrant:
Date after which Warrants are exerciseable:
Expiration date:
Warrant Agent:
Other provisions:
I-1
<PAGE> 5
Units
Title and principal amount of Debt Securities and title
and number of Warrants included in one Unit:
Public offering price and currency:
Purchase price and currency:
Detachable date:
Other provisions:
Warrant Securities
Title:
Principal amount and currency:
Sinking fund provisions:
Redemption provisions:
Interest rate or interest rate formula:
Other provisions:
I-2
<PAGE> 6
SCHEDULE II
to
Underwriting Agreement dated , 19
<TABLE>
<CAPTION>
<S> <C> <C>
Principal
Amount/
Name Number
---- ---------
-------------
Total........................................................................ =============
</TABLE>
<PAGE> 1
EXHIBIT 1.2
USL CAPITAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS FOR DEBT SECURITIES AND WARRANTS
[DECEMBER 1994]
From time to time, USL Capital Corporation, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as "this Agreement." Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.
1. Securities; Prospectus; Representations and Warranties. (a)
The Company proposes to issue and sell from time to time debt securities (the
"Debt Securities") to be issued pursuant to the provisions of the Indenture
dated as of_________, (the "Indenture") between the Company and ______________
___________________, as trustee (the "Trustee"). The Debt Securities may have
varying designations, denominations, maturities, premiums, rates and times of
payment of interest, if any, selling prices, redemption terms, if any, and
other specific terms.
The Company also proposes to issue and sell from time to time warrants
(the "Warrants") to purchase Debt Securities (the "Warrant Securities") either
separately or as units consisting of Warrants and a certain principal amount of
the Debt Securities (the "Units"). The Warrants are to be issued pursuant to a
warrant agreement (the "Warrant Agreement") to be entered into between the
Company and a warrant agent (the "Warrant Agent"). The Warrants may have
varying designations, terms for exercising, selling prices and other specific
terms.
As used herein, "Offered Debt Securities," "Offered Warrants" and
"Offered Units" shall mean the specific Debt Securities, Warrants and Units,
respectively, described in the Underwriting Agreement. The Offered Debt
Securities, Offered Warrants and Offered Units described in the Underwriting
Agreement shall collectively be referred to as the "Offered Securities."
(b) The Company represents and warrants to each Underwriter that
it has filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933 (the "1933 Act") a registration
statement (File No. __________) relating to the Debt Securities and Warrants,
that the Company meets the requirements for use of Form S-3 under the
<PAGE> 2
1933 Act and that such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) and
(a)(2) under the 1933 Act and complies in all other material respects with said
Rule and, as so amended, such registration statement has become effective. The
term "Registration Statement" means the registration statement as amended to
the date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Preliminary Prospectus"
means the Basic Prospectus together with a preliminary prospectus supplement
specifically relating to the Offered Securities. The Company will file with,
or mail for filing to, the Commission a prospectus supplement or supplements
specifically relating to the Offered Securities pursuant to Rule 424 under the
1933 Act (the "Prospectus Supplement"), together with the Basic Prospectus
(collectively, the "Prospectus"). As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "Preliminary Prospectus" shall
include in each case the material, if any, incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934 (the "1934 Act") on or before the effective date of the
Registration Statement, or the issue date of such preliminary prospectus,
preliminary supplemental prospectus, supplemental prospectus or the Prospectus,
as the case may be and any reference herein to the terms "amend", "amendment"
and "supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the 1934 Act after the effective date of the Registration
Statement or the issue date of any Preliminary Prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in any Preliminary Prospectus,
the Registration Statement, the Prospectus or any amendment or supplement
thereto.
(c) The Company represents and warrants to each Underwriter that
the Company has complied and will comply with the provisions of that certain
Florida act relating to the disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and regulations
thereunder or is exempt therefrom.
2. Terms of Public Offering. The Company is advised by the
Representatives that the Underwriters propose to offer the Offered Securities
in the manner set forth in the Prospectus.
3. Delivery and Payment. Payment for the Offered Securities
shall be made by credit advice or certified or official bank check or checks
payable to the order of the Company in such funds and currencies and at the
time and place set forth in this Agreement, upon delivery to the
Representatives of the
2
<PAGE> 3
Offered Securities registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business
days prior to the date of delivery. The time and date of such payment and
delivery of the Offered Securities are herein referred to as the Closing Date.
4. Agreements of the Company. The Company agrees with the
Underwriters as follows:
(a) The Company will promptly cause the Basic Prospectus as
supplemented by the Prospectus Supplement to be filed pursuant to Rule 424
under the 1933 Act and will, prior to the later of the Closing Date or the end
of the period of time referred to in Section 4(e), advise the Underwriters
promptly and, if requested by the Underwriters, will confirm such advice in
writing of (i) the filing and effectiveness of any amendment to the
Registration Statement or the filing of any amendment or supplement to the
Basic Prospectus, (ii) any comments from the Commission relating to any request
by the Commission for any amendment or supplement to the Registration
Statement, the Basic Prospectus or the Prospectus or for any additional
information with respect thereto, (iii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, (iv) the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Offered Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (v) the
happening of any event which in the judgment of the Company makes any statement
made in the Registration Statement, the Basic Prospectus or the Prospectus
untrue in any material respect or which requires the making of any additions to
or changes pursuant to Item 512 of Regulation S-K under the 1933 Act in the
Registration Statement, the Basic Prospectus or the Prospectus in order to make
the statements therein not misleading. The Company will use its best efforts
to prevent the issuance of a stop order by the Commission and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) The Company will furnish to counsel for the Underwriters,
without charge, two signed copies of the Registration Statement as originally
filed with the Commission and of each amendment thereto and two copies of each
Incorporated Document, including in each case all exhibits thereto and in each
case as soon as available, and will also furnish to each Underwriter, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto and all Incorporated Documents, excluding exhibits,
in each case as soon as available.
(c) Prior to the end of the period of time referred to in Section
4(e), the Company will not file any amendment to the Registration Statement or
make any amendment or supplement to the Basic Prospectus or the Prospectus or
file any document which
3
<PAGE> 4
thereupon becomes an Incorporated Document of which the Underwriters shall not
previously have been advised, or to which the Underwriters shall promptly after
being so advised reasonably object in writing.
(d) Prior to the date of the Prospectus, the Company has delivered
or will deliver to each of the Underwriters, without charge, in such quantities
as they have or may hereafter reasonably request, copies of each form of
Preliminary Prospectus. The Company consents to the use, in accordance with
the provisions of the 1933 Act and with the securities or Blue Sky laws of the
jurisdictions in which the Offered Securities are offered by the Underwriters
and by dealers, of each Preliminary Prospectus so furnished by the Company.
(e) From time to time, for such period as in the opinion of
counsel for the Underwriters the Prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer of the Offered Securities
or Warrant Securities issuable upon exercise of the Offered Warrants, the
Company will deliver to each of the Underwriters, without charge, as many
copies of the Prospectus (and of any amendments or supplements thereto) as they
may reasonably request. If during such period of time any event shall occur or
condition shall exist as a result of which, in the reasonable opinion of
counsel for the Company or counsel for the Underwriters, the Registration
Statement or the Prospectus as then amended or supplemented would not reflect
any facts or events which, individually or in the aggregate, represent a
fundamental change as contemplated by Item 512 of Regulation S-K under the 1933
Act in the information set forth in the Registration Statement or the
Prospectus, as then amended or supplemented, and/or would include an untrue
statement of a material fact, or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if, in the reasonable opinion of either such
counsel, it is necessary at any time to amend or supplement the Registration
Statement or the Prospectus, as then amended or supplemented, to comply with
the 1933 Act, the 1934 Act, the respective rules and regulations thereunder or
any other law, the Company will forthwith notify the Underwriters and prepare
and, subject to paragraph (c) of this Section 4, file with the Commission an
amendment or supplement to such Registration Statement or Prospectus which will
include such facts or events and/or will correct such statement or omission or
effect such compliance and will furnish to each of the Underwriters, without
charge, a reasonable number of copies thereof, which the Underwriters shall use
thereafter. The Company consents to the use of the Prospectus (and of any
amendments or supplements thereto) in accordance with the provisions of the
1933 Act and with the securities or Blue Sky laws of the jurisdictions in which
the Offered Securities are offered by the Underwriters and by dealers to whom
Offered Securities may be sold, both in connection with the offering or sale of
Offered Securities and for such period of time thereafter
4
<PAGE> 5
as the Prospectus is required by law to be delivered in connection therewith.
(f) The Company will arrange for the registration or qualification
of the Offered Securities and Warrant Securities issuable upon exercise of the
Offered Warrants, if any, for offering and sale by the Underwriters and dealers
under the laws of such jurisdictions as the Underwriters may reasonably
designate, will maintain the same in effect for so long as required for the
sale of the Offered Securities and will arrange for the determination of the
legality of the Offered Securities and Warrant Securities issuable upon
issuance of the Offered Warrants for purchase by institutional investors;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to the service of process in suits, other than
those arising out of the offering or sale of the Offered Securities, in any
jurisdiction where it is not now so subject.
(g) The Company will (i) comply, in a timely manner, with all
applicable requirements under the 1934 Act relating to the filing with the
Commission of the Company's reports pursuant to Section 13(a), 13(c) or 15(d)
of the 1934 Act and of the Company's proxy statements pursuant to Section 14 of
the 1934 Act and (ii) undertake to obtain the written consent of the Company's
independent public accountants as to the incorporation by reference in the
Registration Statement of the audited financial statements reported on by them
and contained in the Company's annual reports on Form 10-K under the 1934 Act.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the end of the
12-month period (except not later than 90 days if such period covers the
Company's fiscal year) beginning at the end of the fiscal quarter of the
Company during which the Registration Statement or a post-effective amendment
thereto (as defined in Rule 158 under the 1933 Act) became effective, an
earnings statement, which need not be audited, covering such 12-month period,
which earnings statement shall satisfy the provisions of Section 11(a) of the
1933 Act and the rules and regulations of the Commission issued thereunder
(including Rule 158 under the 1933 Act).
(i) So long as any Offered Securities or Warrant Securities are
outstanding, the Company will furnish to the Underwriters (i) as soon as
available, a copy of each report of the Company mailed to security holders or
filed with the Commission and (ii) from time to time such other information
concerning the Company as the Underwriters may reasonably request.
(j) The Company will pay all costs and expenses incident to the
performance of its obligations hereunder,
5
<PAGE> 6
including, without limitation, (i) the printing (or other production) and
delivery of the Registration Statement and all amendments thereto (including
the exhibits thereto), each Basic Prospectus, Preliminary Prospectus,
Prospectus and any amendments and supplements thereto, the Indenture, this
Agreement, any Agreement Among Underwriters and all other documents relating to
the offering and sale of the Offered Securities and Warrant Securities issuable
upon exercise of the Offered Warrants, if any, (ii) the preparation, printing
(or other production), authentication, issuance and delivery of the Offered
Securities and Warrant Securities, (iii) the registration or qualification of
the Offered Securities and Warrant Securities issuable upon exercise of the
Offered Warrants, if any, for offer and sale under securities or Blue Sky laws
as provided in Section 4(f) and the determination of the eligibility of the
Offered Securities and such Warrant Securities for investment under the laws of
such jurisdictions as the Underwriters may designate, including fees and
disbursements of counsel, (iv) the fees and disbursements of the Company's
accountants and the fees and disbursements of counsel for the Company, (v) the
furnishing to the Underwriters and dealers of such copies of the Registration
Statement, the Basic Prospectus, the Prospectus, each Preliminary Prospectus,
the Incorporated Documents and all amendments or supplements to the
Registration Statement and the Prospectus as may be requested for use in
connection with the offering and sale of the Offered Securities, (vi) the
printing of any Power of Attorney, Underwriters' letters or Underwriters'
Questionnaire, and any preliminary or supplemental Blue Sky Survey and Legal
Investment Memoranda, (vii) the fees of investment rating agencies, (viii) the
fees and expenses in connection with any listing on any stock exchange of the
Offered Securities and Warrant Securities issuable upon exercise of the Offered
Warrants, if any, and the registration of the Offered Securities and such
Warrant Securities under the 1934 Act, and (ix) the fees and disbursements of
the Trustee and its counsel.
(k) During the period from the date of the Underwriting Agreement
to the Closing Date, the Company will not announce the proposed sale of, nor
offer, sell, contract to sell or otherwise dispose of any debt securities of
the Company which mature more than one year after such time of delivery and
which are substantially similar to the Offered Securities, without the prior
consent of the Representatives.
(l) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than if terminated pursuant to Section 8), or if
this Agreement shall be terminated by the Underwriters because of any failure
or refusal on the part of the Company to comply with the terms or fulfill any
of the conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket expenses (including fees and expenses of
counsel) reasonably incurred by them in connection herewith but shall not be
responsible for loss of anticipated profits.
6
<PAGE> 7
5. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with each Underwriter that:
(a) each Incorporated Document complied when filed with the
Commission in all material respects with the requirements of the 1934 Act. The
Registration Statement, at the time it became effective, and any amendments
thereto filed prior to the date hereof, complied in all material respects with
the requirements of the 1933 Act; the Registration Statement, the Basic
Prospectus and the Prospectus, and any amendments or supplements thereto, and
the Indenture comply and will comply in all respects with the requirements of
the 1933 Act and the Trust Indenture Act of 1939 (the "Trust Indenture Act")
and the respective rules and regulations thereunder; and, as of the date of
this Agreement, the date of any further amendment to the Registration
Statement or supplement to the Prospectus and on the Closing Date, no such
document includes or will include any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; except that this
representation and warranty does not apply to (i) statements in or omissions
from the Registration Statement, the Basic Prospectus or the Prospectus (or any
amendments or supplements thereto) made in reliance upon written information
furnished to the Company by or on behalf of any Underwriter expressly for use
in connection therewith or (ii) the Statement of Eligibility and Qualification
on Form T-1 furnished by the Trustee and filed as an exhibit to the
Registration Statement;
(b) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally and the application of usual equitable
principles when equitable remedies are sought);
(c) the Offered Securities have been duly and validly authorized
by all necessary corporate action, executed and authenticated in accordance
with the provisions of the Indenture and, when delivered against payment
therefor in accordance with the terms hereof, will be entitled to the benefits
of the Indenture or Warrant Agreement, as applicable, will conform to the
description thereof in the Prospectus and will constitute valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of creditors' rights or by the
application of usual equitable principles when equitable remedies are sought;
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<PAGE> 8
(d) the Warrant Securities, if any, issuable upon exercise of the
Offered Warrants have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as specified in the
Indenture and delivered pursuant to the provisions of this Agreement and the
Warrant Agreement, will be entitled to the benefits of the Indenture, will
conform to the description thereof in the Prospectus and will constitute valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors' rights
or by the application of usual equitable principles when equitable remedies are
sought;
(e) the issue and sale of the Offered Securities, Warrants and
Warrant Securities, if any, the compliance by the Company with all the
provisions of the Indenture, the Warrant Agreement, the Offered Securities, the
Warrants and Warrant Securities and this Agreement and the consummation of any
other of the transactions contemplated by this Agreement will not conflict
with, result in a breach of any of the terms or provisions of, or constitute a
default under the certificate of incorporation or by-laws of the Company or any
indenture, loan agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound, or any
law, regulation, order or decree of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the Company or
any of its subsidiaries;
(f) each of the Company and its subsidiaries is a corporation,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is authorized by its charter to transact the
business in which it is engaged and is duly qualified to conduct the business
in which it is engaged and is in good standing in all jurisdictions in which
its failure so to qualify would materially adversely affect the results of
operations or financial condition of the Company and its subsidiaries taken as
a whole;
(g) all the outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and are owned by Ford Holdings, a Delaware corporation; and all the outstanding
shares of capital stock of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and are owned
directly or indirectly by the Company free and clear of all liens or
encumbrances except that the Company owns, directly or indirectly, the percent
indicated of the outstanding capital stock or partnership interest of each of
the following subsidiaries:
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<PAGE> 9
(h) there is no legal or governmental proceeding pending or to its
knowledge threatened which is required to be disclosed in the Registration
Statement or the Prospectus and which is not described as required, and there
is no material contract or other material document of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required;
(i) the Company is not in violation of its certificate of
incorporation or by-laws or in default in any material respect in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any indenture, loan
agreement, lease, or other agreement or instrument to which it is a party or by
which it is bound;
(j) the accountants who have certified certain of the financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus are, to the knowledge of the Company, independent public
accountants, as required by the 1933 Act;
(k) the financial statements included or incorporated by reference
in the Prospectus comply in all material respects with the applicable
requirements of the 1933 Act and the 1934 Act and present fairly the financial
position of the Company and its subsidiaries and the results of operations of
the Company and its subsidiaries as at the respective dates and for the
respective periods indicated and such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved; and
(l) this Agreement has been duly authorized, executed and
delivered by the Company.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls such
Underwriter within the meaning of either the 1933 Act or the 1934 Act against
any and all losses, claims, damages or liabilities and reasonable expenses
(including reasonable costs of investigation), joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary prospectus, any preliminary
supplemental prospectus, or the Prospectus, or in any amendment thereof or
supplement thereto, or arising out of or
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<PAGE> 10
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal
or other expenses reasonably incurred by them, as the same shall be incurred,
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon any such untrue statement or omission,
or allegation thereof, which has been made therein or omitted therefrom in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Underwriter specifically for use in connection
with the preparation thereof or contained in the Statement of Eligibility and
Qualification on Form T-1 furnished by the Trustee and filed as an exhibit to
the Registration Statement, and (ii) the Company shall not be liable to any
Underwriter under the foregoing indemnity agreement with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact such Underwriter sold
Offered Securities to a person whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus (excluding
Incorporated Documents) or of the Prospectus as then amended or supplemented
(excluding Incorporated Documents) in any case where such delivery is required
by the 1933 Act if the Company has previously furnished copies thereof to such
Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in
the Preliminary Prospectus which was corrected in the Prospectus (or the
Prospectus as amended or supplemented).
If any action or claim shall be brought or asserted against any
Underwriter or any person so controlling an Underwriter in respect of which
indemnity may be sought from the Company, such Underwriter or controlling
person shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel and the payment
of all expenses. Any Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (a) the
employment thereof has been specifically authorized by the Company in writing,
(b) the Company has failed to assume the defense and employ counsel or (c) the
named parties to any such action (including any impleaded parties) include both
such Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised by such counsel
that the representation of such indemnified party and the indemnifying party by
the same counsel would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between
them (in which case, if
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<PAGE> 11
such Underwriter or controlling person notifies the Company in writing that it
elects to employ separate counsel at the expense of the Company, the Company
shall not have the right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time for
all such Underwriters and controlling persons, which firm shall be designated
in writing by the Underwriters). The Company shall not be liable for any
settlement of any such action effected without its written consent, but if
settled with the written consent of the Company, or if there be a final
judgment for the plaintiff in any such action, the Company agrees to indemnify
and hold harmless any Underwriter and any such controlling person from and
against any loss or liability by reason of such settlement or judgment.
(c) Each Underwriter agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
either the 1933 Act or the 1934 Act, each director of the Company and each
officer of the Company who signs the Registration Statement or any amendment
thereto to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which was made therein in reliance upon
and in conformity with written information supplied to the Company by or on
behalf of such Underwriter specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which such Underwriter may otherwise have.
In case any action or claim shall be brought against the Company, or its
directors or officers or any such controlling person in respect of which
indemnity may be sought against any underwriter, such Underwriter shall have
the rights and duties given to the Company, and the Company and its directors
or officers or any such controlling person shall have the rights and duties
given to the Underwriters by the next preceding paragraph.
If the indemnification provided for in this Section 6 is unavailable
to or insufficient to hold harmless an indemnified party under the first or
third paragraph hereof in respect of any losses, claims, damages, liabilities
or expenses referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (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 from the offering of the Offered Securities or (ii) if the
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<PAGE> 12
allocation provided by clause (i) above is not permitted by applicable law (or
to the extent that the contribution so allocated is unobtainable from one or
more contributing parties), 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 in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expense, 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 shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth on the
cover page of the Prospectus. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the 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 6 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 in the preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with defending any such action or claim. Notwithstanding
the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of 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. The Underwriters' obligations to contribute
pursuant to this Section 6 are several in proportion to the respective
principal amounts of the Offered Securities set forth opposite their names in
Schedule II to the Underwriting Agreement and not joint.
Without limiting the scope or intent of the preceding paragraphs of
this Section 6, the Company acknowledges that: (i) the information contained in
the Incorporated Documents has been
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<PAGE> 13
supplied by the Company; (ii) each Underwriter is purchasing the Offered
Securities purchased by it pursuant to this Agreement in reliance upon the
Incorporated Documents; (iii) the prices at which the Offered Securities are
purchased by the Underwriters from the Company and offered and sold by them to
the public are affected by the Incorporated Documents; and (iv) any losses,
claims, damages, liabilities and expenses incurred or suffered by any
Underwriter, or any person controlling any Underwriter, which arise out of or
are based upon any untrue statement or omission or alleged untrue statement or
omission in the Incorporated Documents or in the Prospectus will have been
caused by such Underwriter's reliance upon the Incorporated Documents.
The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect, regardless of
(a) any investigation made by or on behalf of any person, (b) acceptance of any
Offered Securities or Warrant Securities issuable upon exercise of Offered
Warrants and payment therefor hereunder and (c) any termination of this
Agreement. A successor of any Underwriter or of the Company or its directors
and officers or of any such controlling person, as the case may be, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 6.
7. Conditions of the Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Offered Securities hereunder
are subject to the accuracy of the representations and warranties of the
Company set forth herein on and as of the date hereof and the Closing Date (as
if made on the Closing Date), to the accuracy of the statements of the Company
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) Subsequent to the date of the most recent financial
information included in the Registration Statement and the Prospectus, there
shall not have occurred any change, or any development involving a prospective
change, in or affecting the business or properties of the Company or any of its
subsidiaries, not contemplated by the Prospectus which, in the Underwriters'
reasonable opinion, is so material and adverse as to make it impractical to
proceed with the offering or the delivery of the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) That (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened, (ii) there shall not have been
any material change in the capital stock or long-term debt of the
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<PAGE> 14
Company from that set forth in or contemplated by the Prospectus, (iii) there
shall not have been any material adverse change, financial or otherwise, in the
condition or results of operations of the Company and its subsidiaries taken as
a whole, whether or not arising from transactions in the ordinary course of
business, from that set forth in the Prospectus and (iv) neither the Company
nor any subsidiary of the Company shall have any liabilities or obligations,
direct or contingent, material to the Company and its subsidiaries taken as a
whole, other than those reflected in or contemplated by the Prospectus; and
that the Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date, and signed by the President and either the Chief
Financial Officer or the Treasurer of the Company (or in either such case,
another officer or officers acceptable to the Underwriters) to the effect that
the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement, and to the effect set forth in
this Section 7(b) and as to the performance and observance by the Company of
all covenants and agreements herein contained on its part to be performed and
observed and the accuracy of the representations and warranties of the Company
contained herein on and as of the Closing Date.
(c) That the Underwriters shall have received on the Closing Date
an opinion dated the Closing Date, satisfactory to you and counsel for the
Underwriters, of the General Counsel of the Company, to the effect that (i)
each of the Company and its Significant Subsidiaries, as defined in Regulation
S-X under the 1933 Act (the "Significant Subsidiaries"), is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is authorized by its charter to transact the
business in which it is engaged and is duly qualified to conduct the business
in which it is engaged in all jurisdictions in which its failure so to qualify
would materially adversely affect the results of operations or financial
condition of the Company and its subsidiaries taken as a whole, and to the best
of such counsel's knowledge holds all material approvals, authorizations,
orders, licenses, certificates, and permits from governmental authorities
necessary for the conduct of its business as described in the Prospectus as
amended or supplemented; (ii) all the outstanding shares of capital stock of
the Company have been duly authorized and validly issued, are fully paid and
nonassessable; (iii) all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and, except as such counsel may disclose in his
opinion, are owned directly or indirectly by the Company free and clear of all
liens or encumbrances; (iv) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding instrument enforceable against the Company
in accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, reorganization, fraudulent transfer, insolvency, moratorium or
other laws affecting enforcement of creditors' rights or by the application of
equitable principles; (v) the Offered Securities have been duly authorized by
all necessary corporate action for issuance and sale pursuant to this
Agreement, executed and authenticated in
14
<PAGE> 15
accordance with the provisions of the Indenture, issued and delivered to the
Underwriters pursuant to this Agreement, are entitled to the benefits of the
Indenture and constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium or other laws affecting enforcement of creditors' rights or by the
application of equitable principles and the Offered Warrants, if any, have been
executed and countersigned in accordance with the Warrant Agreement and
delivered pursuant to the provisions of this Agreement; and the Warrant
Securities, if any, issuable upon exercise of the Offered Warrants have been
duly authorized by all necessary corporate action for issuance and sale
pursuant to the Warrant Agreement and this Agreement and, when executed and
authenticated as specified in the Indenture and delivered pursuant to the
provisions of the Warrant Agreement, the Warrant Securities will be valid and
binding obligations of the Company, enforceable in accordance with their terms
and entitled to the benefits of the Indenture; (vi) this Agreement and, if
applicable, the Warrant Agreement have been duly authorized, executed and
delivered by the Company, (vii) no authorization, consent or approval of, or
registration or filing with, any governmental or public body or regulatory
authority is required on the part of the Company for the issuance of the
Offered Securities and Warrant Securities issuable upon exercise of the Offered
Warrants, if any, in accordance with the provisions of the Indenture or the
sale of the Offered Securities pursuant to this Agreement, other than
registration of the Offered Securities under the 1933 Act, qualification of the
Indenture under the Trust Indenture Act, and compliance with the securities or
Blue Sky laws of various jurisdictions; (viii) the execution and delivery of
the Indenture, this Agreement and, if applicable, the Warrant Agreement, the
issuance of the Offered Securities in accordance with the provisions of the
Indenture or the Warrant Agreement, as the case may be, and the sale of the
Offered Securities (including any Warrant Securities issuable upon exercise of
Offered Warrants) pursuant to this Agreement do not conflict with or result in
the breach of any of the terms or provisions of, or constitute a default under,
any indenture, loan agreement, lease or other agreement or instrument, or
violate law, regulation, court order or decree, in each case known to such
counsel, to which the Company or any Significant Subsidiary is a party or by
which it is bound, the effect of which in the aggregate would have a material
adverse effect on the financial condition, earnings, business, or properties of
the Company and its subsidiaries considered as a whole, nor will such action
result in the violation of any of the provisions of the charter or by-laws of
the Company or any of its Significant Subsidiaries; (ix) the statements
contained in the Prospectus with respect to the description of the Offered
Securities and the Warrant Securities issuable upon exercise of the Offered
Warrants, insofar as such statements constitute summaries of the documents or
matters referred to therein, fairly present the information required or
purported to be shown with respect to such documents or matters; (x) such
counsel does not know of any legal or governmental proceeding required to be
described in the Registration Statement or the Prospectus which is not
described as required, nor of any
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<PAGE> 16
material contract or other material document required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required; (xi) the
Registration Statement and the Prospectus and any amendment or supplement
thereto (except for the financial statements, schedules and other financial and
statistical information or the Statement of Eligibility and Qualification of
the Trustee on Form T-1 contained therein as to which such counsel need not
express an opinion) as of its effective date or issue date, as applicable,
comply as to form in all material respects with the requirements of the 1933
Act, the 1934 Act and the Trust Indenture Act, and nothing has come to the
attention of such counsel to cause him to believe that the Registration
Statement, or any amendment thereof, at the time it became effective contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, or any amendment or supplement thereto, at
its issue date or as of the Closing Date, contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; (xii) to the
knowledge of such counsel, neither the Company nor any subsidiary is in
violation of its charter or by-laws or in default in any material respect in
the performance of any obligation, agreement or condition contained in any
material bond, debenture, note or any other evidence of indebtedness or in any
material indenture, loan agreement, lease, or other agreement or instrument to
which it is a party (the effect of which in the aggregate would have a material
adverse effect on the financial condition, earnings, business, or properties of
the Company and its subsidiaries considered as a whole); and (xiii) the
Registration Statement has become effective under the 1933 Act and, to the
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the 1933 Act.
(d) That the Underwriters shall have received on the Closing Date
a favorable opinion, dated the Closing Date, of Orrick, Herrington & Sutcliffe,
counsel for the Underwriters, as to the matters referred to in clauses (iv),
(v), (vi) and (xi) of Section 7(c), provided that with respect to clause (xi)
such counsel may state that their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus, and any amendment and supplement thereto, and review and discussion
of the contents thereof, but without independent check or verification except
as stated therein.
(e) That the Underwriters shall have received a letter addressed
to you and dated the Closing Date of the Company's independent public
accountants, in form and substance satisfactory to the Underwriters, to the
effect set forth in Exhibit A hereto.
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<PAGE> 17
(f) That prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
8. Termination of Agreement. In the event that on or prior to
the Closing Date, (i) a downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, (ii) any such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities, (iii) trading
in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (iv) a banking moratorium shall have been declared by federal, New
York or California State authorities or (v) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to
make it, in the judgment of the Underwriters, impracticable to market the
Offered Securities, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or any time prior to, the Closing Date in the
absolute discretion of the Underwriters, without liability on the part of any
Underwriter to the Company.
Any notice under this Section 8 may be given by telegraph or telephone
but shall be subsequently confirmed by letter.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Underwriters or the Company or
any of the officers, directors or controlling persons referred to in Section 6
hereof, and will survive delivery of and payment for the Offered Securities and
Warrant Securities issuable upon exercise of the Offered Warrants. The
provisions of Sections 4(j) and Section 6 hereof shall survive the termination
or cancellation of this Agreement.
10. Notices. Except as otherwise provided in Section 8 hereof,
notice given pursuant to any of the provisions of this Agreement shall be in
writing and shall be delivered (a) to the Company, at the office of the
Company, 733 Front Street, San Francisco, California 94111, Attention:
President, or (b) to the Underwriters at the address furnished to the Company
in writing for the purpose of communications hereunder.
11. Successors. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the
17
<PAGE> 18
Company and the controlling persons, directors and officers referred to in
Section 6 hereof and their respective successors and assigns or personal
representatives, and no other person shall acquire or have any right under or
by virtue of this Agreement. The terms "successor" or "successors and assigns"
as used in this Agreement shall not include a purchaser of any of the Offered
Securities or Warrant Securities issuable upon exercise of Offered Warrants
from any of the Underwriters in his or its status as such purchaser.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
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EXHIBIT A
FORM OF LETTER OF
INDEPENDENT ACCOUNTANTS TO THE COMPANY
The letter of the independent accountants to the Company to be
delivered to the Underwriters pursuant to Section 7(e) of this Agreement shall
confirm that they are independent accountants within the meaning of the 1933
Act and the 1934 Act and the respective published rules and regulations
thereunder and shall be to the effect set forth below. All references to the
"Registration Statement" shall be to the Registration Statement as amended as
of the date of such letter and all references to the "Prospectus" shall be to
the Prospectus, as amended or supplemented as of the date of such letter.
(i) in their opinion the consolidated financial
statements and schedules audited by them and included or
incorporated by reference in the Registration Statement and
the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the
1934 Act and the related published rules and regulations
thereunder;
(ii) on the basis of a reading of the unaudited
consolidated financial statements, if any, included or
incorporated by reference in the Registration Statement and
the Prospectus or used as a basis for the summary consolidated
financial data included in the Prospectus and of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders and directors of the Company;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited balance
sheet of the Company and its consolidated subsidiaries,
nothing came to their attention which caused them to believe that:
(1) the unaudited consolidated financial
statements included in the Company's quarterly
reports on Form 10-Q incorporated by reference in the
Prospectus, if any, do not comply in form in all
material respects with the applicable accounting
requirements of the 1934 Act and the published rules
and regulations thereunder or are
A-1
<PAGE> 20
not presented in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements incorporated by
reference in the Prospectus; or
(2) the amounts in the unaudited summary
financial information, if any, included in the
Registration Statement and the Prospectus do not
agree with the corresponding amounts in the financial
statements from which such amounts were derived or
were not determined on a basis substantially
consistent with that of the audited consolidated
financial statements included or incorporated by
reference in the Registration Statement and
Prospectus; or
(3) as of a specified date not more than
five days prior to the date of such letter, there was
any decrease in consolidated stockholder's equity or
any increase in consolidated long-term debt of the
Company as compared with the corresponding amounts
shown on the latest balance sheet of the Company and
its consolidated subsidiaries included or
incorporated by reference in the Prospectus; or for
the period from the date of the latest financial
statements included or incorporated by reference in
the Prospectus to a specified date not more than five
days prior to the date of such letter, there were any
decreases, as compared with the corresponding period
in the preceding year, in consolidated total revenues
or consolidated net income of the Company and its
consolidated subsidiaries, except in all instances
for increases or decreases which the Prospectus
discloses have occurred or may occur or which are set
forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Underwriters; or
(4) condensed financial statements included or
incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act
and the published rules and regulations thereunder or
the pro forma adjustments have not been properly
applied to the historical amounts in the compilation
of those statements; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting,
A-2
<PAGE> 21
financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set
forth or incorporated by reference in the Registration
Statement and the Prospectus agrees with the accounting
records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
A-3
<PAGE> 1
EXHIBIT 1.3
USL CAPITAL CORPORATION
$___________
MEDIUM-TERM NOTES, SERIES __
DUE FROM NINE MONTHS TO 30 YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
[Date]
__________________
__________________
__________________
Dear Ladies/Gentlemen:
USL Capital Corporation, a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
by the Company of up to $____________aggregate principal amount (or the
equivalent thereof in one or more foreign currencies or currency units) of its
Medium-Term Notes, Series __ (the "Notes") due from nine months to __ years
from date of issue. The Notes are to be issued under an Indenture dated as of
_____________ (the "Indenture") between the Company and
__________________________________, as trustee (the "Trustee"). The Notes will
have the maturities, interest rates (whether fixed or floating), redemption and
repayment provisions and other terms set forth in a pricing supplement to the
Prospectus referred to below. The Notes may be denominated in U.S. dollars,
foreign currencies or foreign composite currency units (the "Specified
Currency") as may be specified in the applicable pricing supplement. Subject
to the terms and conditions stated herein, the Company hereby (i) appoints you
as an agent of the Company for the purpose of soliciting offers to purchase the
Notes and (ii) agrees that whenever the Company determines to sell Notes
directly to you as principal for resale to others, it will enter into a Terms
Agreement relating to such sale in accordance with the provisions of Section
1(b) hereof, provided, however, that the Company reserves the right to appoint
additional agents for the purpose of soliciting offers to purchase the Notes
(the "Other Agents") so long as the Company notifies you prior to any such
appointment, and provided further that the Company reserves the right to sell
and may accept offers to purchase the Notes directly on its own behalf. In the
case of
<PAGE> 2
sales made directly by the Company, no commission will be payable. So
long as this Agreement shall remain in effect with respect to any Agent, the
Company shall not, without the consent of such Agent, solicit or accept offers
to purchase, or sell, any debt securities with a maturity at the time of
original issuance of 9 months to 30 years except pursuant to this Agreement or
an agreement with provisions substantially the same as this Agreement or except
pursuant to a private placement not constituting a public offering under the
Securities Act of 1933 (the "1933 Act") or except in connection with the firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities. For the
purposes of this Agreement, the term "the Agent" shall refer to you acting
solely in the capacity as agent for the Company hereunder and not as principal,
the term "the Purchaser" shall refer to you acting solely as principal
hereunder and not as agent, and the name "[Addressee]" shall refer to you
acting in both such capacities or in either such capacity.
1. Solicitations by the Agent of Offers to Purchase;
Sales of Notes to the Purchaser.
(a) Solicitations as Agent. Following the Commencement
Date (as defined below), the Company shall notify the Agent from time to time
as to the commencement of a period during which the Notes may be offered and
sold by the Agent (each period, commencing with such a notification and ending
at such time as the authorization for offers and sales through the Agent shall
have been suspended by the Company or the Agent as provided hereunder, being
herein referred to as an "Offering Period"). On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Agent will use its best efforts to solicit
offers to purchase the Notes during each Offering Period upon the terms and
conditions set forth in the Prospectus as then amended or supplemented.
The Company agrees to pay the Agent, as consideration for
soliciting the sale of the Notes, a commission (which may be in the form of a
discount) equal to the following percentage of the principal amount of each
Note sold by the Agent.
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
More than 9 months to less than 1 year %
1 year to less than 18 months
18 months to less than 2 years
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 8 years
8 years to less than 9 years
9 years to less than 10 years
</TABLE>
2
<PAGE> 3
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
10 years to less than 15 years
15 years to less than 20 years
20 years up to and including 30 years
</TABLE>
The Agent is authorized to solicit orders for the Notes. The
Agent shall communicate to the Company, orally or in writing, each offer or
indication of interest received by it to purchase Notes. The Company shall
have the sole right to accept offers to purchase the Notes and may reject any
such offer in whole or in part. The Agent shall have the right to reject, in
its discretion reasonably exercised, any offer received by it to purchase the
Notes in whole or in part, and any such rejection shall not be deemed a breach
of its agreements contained herein. In soliciting offers to purchase the Notes
hereunder, the Agent is acting solely as agent for the Company, and not as
principal, and does not assume any obligation toward or relationship of agency
or trust with any purchaser of the Notes (other than any such obligation or
relationship which the Agent assumes independently of this Agreement). The
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by the Agent and accepted by the Company, but the Agent shall not have any
liability to the Company in the event any such purchase is not consummated for
any reason. Under no circumstances will the Agent be obligated to purchase any
Notes for its own account.
The Agent and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Medium-Term Note Administrative Procedures attached hereto as Exhibit A (the
"Procedures"). The Procedures may be amended only by written agreement of the
Company and the Agent.
The documents required to be delivered by Section 5 of this
Agreement shall be delivered at the offices of [____________________________],
or such other place as may be agreed to by the Company and the Agent, on such
date as may be agreed to by the Company and the Agent (the "Commencement
Date").
(b) Purchases as Principal. Each sale of Notes to the
Purchaser shall be made in accordance with the terms of this Agreement and a
supplemental agreement which will provide for the sale of such Notes to, and
the purchase and reoffering thereof by, the Purchaser. Each such supplemental
agreement (which shall be substantially in the form of Exhibit B hereto and
which may take the form of an exchange of any standard form of written
telecommunication between the Purchaser and the Company) is herein referred to
as a "Terms Agreement". The Purchaser's commitment to purchase Notes pursuant
to any Terms Agreement shall be deemed to have been made on the basis of the
3
<PAGE> 4
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall describe the Notes to be purchased by the Purchaser pursuant thereto,
specify the principal amount of such Notes, the interest rate or interest rate
formula, if any, on the Notes, the interest payment dates, if any, the
redemption dates and prices, if any, the repayment dates and prices, if any,
the Specified Currency, the price to be paid to the Company for such Notes, the
date and time of delivery of payment for such Notes (the "Purchase Date"), the
place of delivery of the Notes and payment therefor, the method of payment, any
requirements for the delivery or modification of the opinions of counsel, the
certificates from the Company or its officers, and the letters from the
Company's independent public accountants pursuant to Section 6 hereof.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made to the office of the Purchaser in
New York, New York or by other means for the account of the Purchaser through
The Depository Trust Company, not later than the Purchase Date set forth in the
respective Terms Agreement, against payment of funds to the Company in the net
amount due to the Company for such Notes by the method and in the form set
forth in the respective Terms Agreement.
2. Manner of Sales. (a) The sale of the Notes through
or by [Addressee] may be effected from time to time in one or more transactions
(which may involve block transactions) (i) on the New York Stock Exchange,
American Stock Exchange or other national stock exchanges on which the Notes
are traded in transactions which may include special offerings, exchange
distributions and/or secondary distributions pursuant to and in accordance with
the rules of such exchanges, (ii) in the over-the-counter market, or (iii) in
transactions otherwise than on such exchanges or in the over-the-counter market
(including, without limitation, fixed-price underwritten offerings), or in a
combination of any such transactions. [Addressee] may effect such transactions
by selling Notes to or through other broker-dealers, and such other
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from [Addressee] and/or commissions from the
purchasers of Notes for whom they may act as agent (which discounts,
concessions or commissions will not exceed those customary in the types of
transactions involved). In connection with the sale of Notes, [Addressee] may
also receive commissions from purchasers of Notes for whom it may act as agent.
(b) The Company acknowledges that nothing in this
Agreement shall prohibit [Addressee] from (i) acting as broker for the sale of
Notes by customers other than the Company, (ii) soliciting the sale of Notes
through [Addressee] as broker for the seller, soliciting the sale of Notes to
[Addressee] as principal and soliciting offers to buy Notes, (iii) purchasing
4
<PAGE> 5
Notes otherwise than pursuant to this Agreement, and (iv) offering and selling
as principal for its own account Notes which [Addressee] has purchased
otherwise than pursuant to this Agreement.
3. Representations and Warranties. The Company
represents and warrants to, and agrees with [Addressee] that:
(a) When the Registration Statement became effective,
when the Prospectus, as may be supplemented or amended, is first filed with the
Commission pursuant to Rule 424(b) under the 1933 Act, when any amendment to
the Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when any
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) under the 1933 Act, on each day during an Offering Period, at the time
of delivery of any Notes to any purchaser or his agent whose offer to purchase
such Notes was delivered to the Company during an Offering Period, when this
Agreement is executed and delivered by the parties hereto, on the date of any
Terms Agreement and on any Purchase Date: the Company meets the requirements
for use of Form S-3 under the 1933 Act and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such Form
for the registration under the 1933 Act of the Notes (Registration Statement
No._____) and such Registration Statement has become effective; and such
registration statement, at the time of filing and at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(x) and (a)(2)
under the 1933 Act and complies in all other material respects with said Rule.
Such registration statement, including the exhibits thereto, when it became
effective, is hereinafter called the "Registration Statement", and such
prospectus in the form in which it appears in the Registration Statement is
hereinafter called the "Prospectus". The term "preliminary prospectus" as used
herein means a prospectus filed as part of such registration statement for use
prior to the effective date of such registration statement or filed as part of
any post-effective amendment to the Registration Statement prior to the
effective date of such post-effective amendment, as contemplated in Rule 430
under the 1933 Act. The Company proposes to file with the Commission from time
to time, pursuant to Rule 424(b) under the 1933 Act, supplements to the
Prospectus, which will describe certain terms of the Notes and prior to any
such filing will advise [Addressee] of all further information (financial and
other) with respect to the Company to be set forth therein. Any preliminary
form of supplemental prospectus which may be filed pursuant to Rule 424(b)
under the 1933 Act is hereinafter called a "preliminary supplemental
prospectus". Any reference herein to the Registration Statement, any
preliminary prospectus, any preliminary supplemental prospectus, any
supplemental prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934 (the "1934
Act")
5
<PAGE> 6
on or before the effective date of the Registration Statement, or the issue
date of such preliminary prospectus, preliminary supplemental prospectus,
supplemental prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any preliminary prospectus, any preliminary
supplemental prospectus, any supplemental prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the 1934 Act
after the effective date of the Registration Statement or the issue date of any
preliminary prospectus, any preliminary supplemental prospectus, any
supplemental prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(b) When the Registration Statement became effective,
when the Prospectus, as may be supplemented or amended, is first filed with the
Commission pursuant to Rule 424(b) under the 1933 Act, when any amendment to
the Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when any
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) under the 1933 Act, on each day during an Offering Period, at the time
of delivery of any Notes to any purchaser or his agent whose offer to purchase
such Notes was delivered to the Company during an Offering Period, when this
Agreement is executed and delivered by the parties hereto, on the date of any
Terms Agreement and on any Purchase Date:
(i) the Registration Statement, as amended as of
any such time, and the Prospectus, as amended or supplemented as of
any such time, and the Indenture will comply in all material respects
with the applicable requirements of the 1933 Act, the 1934 Act and the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder;
(ii) neither the Registration Statement, as
amended as of any such time, nor the Prospectus, as amended or
supplemented as of any such time, will contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein in
light of the circumstances under which they were made not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of [Addressee] or the Other
Agents specifically for use in connection with the preparation of
6
<PAGE> 7
the Registration Statement and the Prospectus or any amendment thereof
or supplement thereto;
(iii) each of the Company and its subsidiaries is a
corporation, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, is authorized
by its charter to transact the business in which it is engaged, is
duly qualified to conduct the business in which it is engaged and is
in good standing in all jurisdictions in which its failure so to
qualify would materially adversely affect the results of operations or
financial condition of the Company and its subsidiaries taken as a
whole, and holds all material approvals, authorizations, orders,
licenses, certificates and permits from governmental authorities
necessary for the conduct of its business as described in the
Prospectus as amended or supplemented;
(iv) all the outstanding shares of capital stock
of the Company have been duly authorized and validly issued, are fully
paid and nonassessable and are owned by Ford Holdings, a Delaware
corporation; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company free and clear of all liens or encumbrances
except that the Company owns, directly or indirectly, the percent
indicated of the outstanding capital stock or partnership interest of
each of the following subsidiaries:
(v) there is no legal or governmental proceeding
pending or to its knowledge threatened which is required to be
disclosed in the Registration Statement, as amended as of such time,
or the Prospectus, as amended or supplemented as of such time, and
which is not described as required, and there is no material contract
or other material document of a character required to be described in
the Registration Statement, as amended as of such time, or the
Prospectus, as amended or supplemented as of such time, or to be filed
as an exhibit to the Registration Statement, as amended as of such
time, which is not described or filed as required;
(vi) the Company is not in violation of its
certificate of incorporation or by-laws or in default in any material
respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any indenture, loan agreement, lease, or other
agreement or instrument to which it is a party or by which it is
bound;
(vii) the accountants who have certified certain of
the financial statements included or incorporated by reference in the
Registration Statement, as amended as of such time, and the
Prospectus, as amended or supplemented as
7
<PAGE> 8
of such time, are, to the knowledge of the Company, independent public
accountants, as required by the 1933 Act;
(viii) the financial statements included or
incorporated by reference in the Prospectus, as amended or
supplemented as of such time, comply in all material respects with the
applicable requirements of the 1933 Act and the 1934 Act and present
fairly the financial position of the Company and its subsidiaries and
the results of operations of the Company and its subsidiaries as at
the respective dates and for the respective periods indicated and such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during
the periods involved;
(ix) each document incorporated by reference in
the Prospectus was timely filed under the 1934 Act and the rules and
regulations promulgated thereunder and complies as to form in all
material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder, and no such document
contained, at the time it was filed with the Commission, any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(x) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its terms,
except as rights to indemnity hereunder may be limited by applicable
federal or state securities laws; and
(xi) neither the issue and sale of any Notes, nor
the compliance by the Company with all the provisions of the
Indenture, the Notes and this Agreement, or the consummation of any
other of the transactions contemplated by this Agreement will conflict
with, result in a breach of any of the terms or provisions of, or
constitute a default under the certificate of incorporation or by-laws
of the Company or any indenture, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it is bound, or any law,
regulation, order or decree of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries.
(c) At the time of delivery of any Notes to any purchaser
or his agent whose offer to purchase such Notes was delivered to the Company
during an Offering Period and on any Purchase Date:
8
<PAGE> 9
(i) the Notes being delivered pursuant to this
Agreement on such date conform to the description thereof contained in
the Prospectus, as amended or supplemented as of such time;
(ii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the Trust
Indenture Act and constitutes a valid and binding instrument
enforceable against the Company in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and the application of usual equitable
principles when equitable remedies are sought); and
(iii) the Notes being delivered pursuant to this
Agreement on such date have been duly and validly authorized by all
necessary corporate action, executed and authenticated in accordance
with the provisions of the Indenture and, when delivered to and paid
for by the purchasers thereof, will constitute valid and binding
obligations enforceable against the Company in accordance with their
terms and will be entitled to the benefits of the Indenture (subject
as aforesaid).
4. Agreements of the Company. The Company agrees with
[Addressee] that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement and during an Offering Period, the Company will not
file any amendment to the Registration Statement or any supplement to the
Prospectus unless the Company has previously furnished [Addressee] with a copy
thereof for its review and will not file any such proposed amendment or
supplement to which [Addressee] reasonably objects. Subject to the foregoing
sentence, the Company will promptly cause the Prospectus together with each
supplement thereto to be mailed to the Commission for filing pursuant to Rule
424(b) by first class certified or registered mail or will promptly cause each
supplement to the Prospectus to be filed with the Commission pursuant to said
Rule. The Company will promptly advise [Addressee], and, if requested by the
Agents will confirm such advice in writing, of (i) the filing of any amendment
or supplement to the Prospectus, including the filing of documents incorporated
by reference, (ii) the filing and effectiveness of any amendment to the
Registration Statement, (iii) any comments from the Commission relating to any
request by the Commission for any amendment of the Registration Statement or
any amendment of or supplement to the Prospectus or for any additional
information, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and (v) the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes
9
<PAGE> 10
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof. Upon the Agent's request, the Company will within a
reasonable time inform the Agent of the aggregate principal amount of Notes
registered under the Registration Statement that remain unissued.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the 1933 Act, any event occurs or
condition exists as a result of which, in the reasonable opinion of counsel for
[Addressee] or counsel for the Company, the Registration Statement or the
Prospectus as then amended or supplemented would not reflect any facts or
events which, individually or in the aggregate, represent a fundamental change
as contemplated by Item 512 of Regulation S-K under the 1933 Act in the
information set forth in the Registration Statement or the Prospectus, as then
amended or supplemented, and/or would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if, in the reasonable opinion of either such counsel, it is
necessary at any time to amend or supplement the Registration Statement or the
Prospectus, as then amended or supplemented, to comply with the 1933 Act, the
1934 Act, the respective rules and regulations thereunder and any other law,
the Company will promptly notify [Addressee] and, if so notified by the
Company, [Addressee] shall forthwith suspend solicitation of offers to purchase
Notes or sales, as the case may be, and cease using the Prospectus as then
amended or supplemented; the Company will promptly prepare and file with the
Commission, subject to the first sentence of Section 4(a) above, an amendment
or supplement to such Registration Statement or Prospectus which will include
such facts or events and/or will correct such statement or omission or effect
such compliance and will supply such amended or supplemented Prospectus to
[Addressee] in such quantities as [Addressee] may reasonably request. If such
amendment or supplement, and any documents, certificates and opinions furnished
to [Addressee] pursuant to Section 4(h) below in connection with the
preparation or filing of such amendment or supplement, are satisfactory in all
respects to [Addressee], the Agent will, upon the filing of such amendment or
supplement with the Commission or effectiveness of an amendment to the
Registration Statement, resume its obligation to solicit offers to purchase
Notes hereunder.
(c) On or as soon as practicable after the date on which
there shall be released to the general public interim financial statement
information relating to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to
[Addressee], confirmed in writing, and shall cause the Prospectus to be amended
or supplemented to include financial information
10
<PAGE> 11
with respect to the results of operations of the Company for the period between
the end of the preceding fiscal year and the end of such quarter or for such
fiscal year, as the case may be, and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding of such
amounts or as shall be required by the 1933 Act or the regulations thereunder;
provided, however, that if on the date of such release [Addressee] shall have
suspended solicitation of purchases of the Notes in its capacity as Agent
pursuant to a request from the Company, and shall not then hold any Notes as
principal, the Company shall not be obligated so to amend or supplement the
Prospectus until such time as the Company shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently enter into a new
Terms Agreement with [Addressee].
(d) The Company will (i) comply, in a timely manner, with
all applicable requirements under the 1934 Act relating to the filing with the
Commission of the Company's reports pursuant to Section 13(a), 13(c) or 15(d)
of the 1934 Act and of the Company's proxy statements pursuant to Section 14 of
the 1934 Act and (ii) undertake to obtain the written consent of the Company's
independent public accountants as to the incorporation by reference in the
Registration Statement of the audited financial statements reported on by them
and contained in the Company's annual reports on Form 10-K under the 1934 Act.
(e) The Company will make generally available to its
security holders as soon as practicable, but not later than 45 days after the
end of the 12-month period (except not later than 90 days if such period covers
the Company's fiscal year) beginning at the end of the fiscal quarter of the
Company during which the Registration Statement or a post-effective amendment
thereto (as defined in Rule 158 under the 1933 Act) relating to the Notes
became effective, an earnings statement, which need not be audited, covering
such 12-month period, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act and the rules and regulations of the Commission
issued thereunder (including Rule 158 under the 1933 Act).
(f) The Company will furnish to [Addressee] and counsel
for [Addressee], without charge, copies of the Registration Statement, the
Prospectus and all amendments of and supplements to such documents, in each
case as soon as available and in such quantities as [Addressee] reasonably
requests; the Company will also furnish to [Addressee] and counsel for
[Addressee], without charge, one manually signed copy of the Registration
Statement and all amendments thereto (including in each case all exhibits
thereto) as soon as available.
(g) The Company will arrange for the registration or
qualification of the Notes for sale under the laws of such jurisdictions as
[Addressee] may reasonably designate, will
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<PAGE> 12
maintain the same in effect so long as required for the distribution of the
Notes pursuant to this Agreement and will arrange for the determination of the
legality of the Notes for purchase by institutional investors; provided that in
no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to the service of process in suits, other than those arising out of
the offering or sale of the Notes, in any jurisdiction where it is not now so
subject.
(h) The Company shall furnish to [Addressee] such
documents, certificates of officers of the Company and opinions of counsel for
the Company relating to the business, operations and affairs of the Company,
the Registration Statement and the Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures and the
performance by the Company and [Addressee] of their respective obligations
hereunder and thereunder as [Addressee] may from time to time and at any time
prior to the termination of this Agreement reasonably request.
(i) During the period of time commencing with the date of
any Terms Agreement and ending on the Purchase Date of the Notes subject to
such Terms Agreement, the Company shall not, without the prior consent of the
Purchaser, (1) issue or announce the proposed issuance of any of its debt
securities with substantially similar terms to the Notes being purchased
pursuant to the Terms Agreement or (2) purchase any of its Notes.
(j) The Company shall, whether or not any sale of Notes
is consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreements, including, without limitation,
the fees and disbursements of its accountants and its counsel, the cost of
printing (or other production) and delivery of the Registration Statement and
the Prospectus, including all amendments and supplements thereto, the
Indenture, this Agreement and all other documents relating to the offering, the
cost of preparing, printing (or other production), packaging and delivering the
Notes, the fees and disbursements (including fees of counsel) incurred in
connection with the registration or qualification of the Notes for sale as
provided in Section 4(g) and determination of eligibility for investment of the
Notes under the securities or Blue Sky laws of such jurisdictions as
[Addressee] may reasonably designate, the fees and disbursements of the
Trustee, the fees of any agency that rates the Notes, any expenses incurred by
[Addressee] from charges imposed by any depository in connection with initial
issuances of Notes represented by global securities ("book-entry securities")
and in connection with any interest payments made on book-entry securities and
the fees and expenses in connection with any listing of the Notes on the New
York Stock Exchange, American Stock Exchange or any other national stock
exchange.
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<PAGE> 13
(k) The Company shall, whether or not any sale of Notes
is consummated, reimburse [Addressee] for any out-of-pocket expenses
(including, without limitation, approved advertising expenses and the
reasonable fees and disbursements of counsel to [Addressee]) incurred
heretofore or hereafter by [Addressee] in connection with the offering,
purchase and sale of the Notes. Any such out-of-pocket expenses shall be
payable upon the receipt by the Company from [Addressee] of an itemized
statement therefor.
(l) Each time the Registration Statement or the
Prospectus is amended (which term for the purposes of this Agreement shall
include the filing by the Company of materials incorporated by reference in the
Registration Statement or the Prospectus) or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rate or
formula, redemption date(s) and price(s), repayment date(s) and price(s),
Specified Currency, denominations, interest payment dates, maturity and other
terms set forth on the face of the Notes or for a change deemed immaterial in
the reasonable opinion of [Addressee]), the Company will deliver or cause to be
delivered forthwith to [Addressee] a certificate of the Company signed by the
Chairman or the President and either the Chief Financial Officer or the
Treasurer of the Company (or in either such case, another officer or officers
acceptable to [Addressee]), dated the date of the effectiveness of such
amendment or the date of filing of such supplement, as the case may be, in form
reasonably satisfactory to [Addressee], to the effect that the statements
contained in the certificate of the Company referred to in Section 5(d) that
was last furnished to [Addressee] (either pursuant to Section 5(d), Section
6(b) or pursuant to this Section 4(1)) are true and correct at the time of the
effectiveness of such amendment (which for the purposes of this Agreement in
the case of the filing of materials incorporated by reference shall be the date
of the filing of such materials) or the filing of such supplement, as the case
may be, as though made at and as of such time (except that (i) the last day of
the fiscal quarter for which financial statements of the Company were last
filed with the Commission shall be substituted for the corresponding date in
such certificate and (ii) such statements shall be deemed to relate to the
Registration Statement, as amended at the time of effectiveness of such
amendment, and to the Prospectus, as amended and supplemented at the date of
such certificate) or, in lieu of such certificate, a certificate of the same
tenor as the certificate of the Company referred to in Section 5(d) but
modified to relate to the last day of the fiscal quarter for which financial
statements of the Company were last filed with the Commission and to the
Registration Statement, as amended at the time of the effectiveness of such
amendment, and to the Prospectus, as amended or supplemented at the date of
such certificate.
(m) Each time the Registration Statement or the
Prospectus is amended or supplemented, including by incorporation
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<PAGE> 14
by reference, the Company shall furnish to or cause to be furnished forthwith
to [Addressee] a written opinion of the Corporate Counsel of the Company, or
other counsel satisfactory to [Addressee]; provided, however, that such opinion
need not be furnished with respect to an amendment or supplement providing
solely for a change in the interest rate or formula, redemption date(s) and
price(s), repayment date(s) and price(s), Specified Currency, denominations,
interest payment dates, maturity and other terms set forth on the face of the
Notes or for a change deemed immaterial in the reasonable opinion of
[Addressee]. Any such opinion shall be dated the date of the effectiveness of
such amendment or the date of filing of such supplement, as the case may be, in
form satisfactory to [Addressee], and shall be to the effect set forth in
Exhibit C hereto. In lieu of such opinion, counsel last furnishing such an
opinion to [Addressee] may furnish to [Addressee] a letter to the effect that
[Addressee] may rely on such last opinion to the same extent as though it were
dated the date of such letter authorizing reliance on such last opinion (except
that statements in such last opinion will be deemed to relate to the
Registration Statement, as amended at the time of the effectiveness of such
amendment, and to the Prospectus, as amended or supplemented at the date of
such opinion).
(n) Each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or supplemental
financial information, the Company shall cause its independent public
accountants forthwith to furnish [Addressee] a letter, dated the date of the
effectiveness of such amendment or the date of filing of such supplement, as
the case may be, in form satisfactory to [Addressee], of the same tenor as the
letter referred to in Section 5(e) with such changes as may be necessary to
reflect the amended or supplemental financial information included or
incorporated by reference in the Registration Statement and the Prospectus,
each as amended or supplemented to the date of such letter; provided, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include or incorporate by reference financial information with respect to a
fiscal quarter, the Company's independent public accountants may limit the
scope of such letter to the unaudited financial statements included in such
amendment or supplement unless any other information included or incorporated
by reference therein of an accounting, financial or statistical nature is of
such a nature that, in the reasonable judgment of [Addressee], such letter
should cover such other information.
(o) Each acceptance by the Company of an offer to
purchase Notes hereunder (including any purchase by such Agent as principal and
each execution and delivery by the Company of a Terms Agreement with such
Agent, shall be deemed to be an affirmation to such Agent that the
representations and warranties of the Company contained in or made pursuant to
this Agreement are true and correct as of the date of such acceptance or of
such Terms Agreement, as the case may be, as though made at and as of
14
<PAGE> 15
such date and an undertaking that such representations and warranties will be
true and correct as of the settlement date for the Notes relating to such
acceptance or as of the Purchase Date relating to such sale as the case may be,
as though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Notes).
5. Conditions to the Obligations of the Agent. The
obligations of the Agent to solicit offers to purchase the Notes will be
subject to the accuracy of the representations and warranties on the part of
the Company herein on the date hereof and as of the Commencement Date (as if
made on the Commencement Date), to the accuracy of the statements of the
Company made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued
and no proceedings for that purpose shall have been initiated or threatened.
(b) The Company shall have furnished to the Agent the
opinion of the Corporate Counsel of the Company (or other counsel of the
Company acceptable to the Agent), dated the Commencement Date, to the effect
set forth in Exhibit C hereto.
(c) The Agent shall have received from Orrick, Herrington
& Sutcliffe, counsel for the Agent (or other counsel acceptable to the Agent),
an opinion dated the Commencement Date to the effect set forth in Exhibit D
hereto.
(d) The Company shall have furnished to the Agent a
certificate of the Company, signed by the Chairman or the President and either
the Chief Financial Officer or the Treasurer of the Company (or, in either such
case, another officer or officers acceptable to the Agent), dated the
Commencement Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, as amended as of the date of
such certificate, the Prospectus, as amended and supplemented as of the date of
such certificate, and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the date of such certificate with the same
effect as if made on the date of such certificate and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied as a condition to the
obligations of the Agent under this Agreement;
15
<PAGE> 16
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to the Company's knowledge, have been
threatened; and
(iii) (a) there has been no material change in the
capital stock or long-term debt of the Company from that set forth in
or contemplated by the Prospectus, as amended or supplemented as of
the date of the certificate, (b) there has been no material adverse
change, financial or otherwise, in the condition or results of
operations of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business, from that set forth in the Prospectus, as amended or
supplemented as of the date of the certificate, and (c) neither the
Company nor any subsidiary has any liabilities or obligations, direct
or contingent, material to the Company and its subsidiaries taken as a
whole, other than those reflected in or contemplated by the
Prospectus, as amended or supplemented as of the date of the
certificate.
(e) The Company's independent public accountants shall
have furnished to the Agent a letter or letters, dated the Commencement Date,
in form and substance satisfactory to the Agent, to the effect set forth in
Exhibit E hereto.
(f) The Company shall have furnished to the Agent such
further information, certificates and documents as the Agent may reasonably
request from time to time.
Any certificate signed by any officer of the Company and
delivered to [Addressee] or its counsel and delivered explicitly pursuant to
the terms of this Agreement shall be deemed a representation and a warranty by
the Company to [Addressee] as to matters covered thereby, as if set forth
herein.
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase Notes pursuant to any Terms Agreement
will be subject to the accuracy of the representations and warranties on the
part of the Company herein on the date hereof, and as of the date of the
respective Terms Agreement and as of the Purchase Date thereunder (as if made
on such respective dates), to the performance and observance by the Company of
all covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued
and no proceedings for that purpose shall have been initiated or threatened.
16
<PAGE> 17
(b) To the extent required by the respective Terms
Agreement, the Purchaser shall have received (i) a certificate of the Company,
dated the Purchase Date, to the effect set forth in Section 5(d), (ii) the
opinion of the Corporate Counsel of the Company, dated the Purchase Date to the
effect set forth in Exhibit C hereto, (iii) the opinion of Orrick, Herrington &
Sutcliffe, counsel for the Purchaser (or other counsel acceptable to the
Purchaser), dated the Purchase Date to the effect set forth in Exhibit D
hereto, and (iv) a letter or letters from the Company's independent public
accountants to the effect set forth in Section 5(e) but dated the Purchase
Date.
(c) Subsequent to the date of the most recent financial
information included in the Registration Statement and the Prospectus, each as
amended or supplemented at the date of the respective Terms Agreement, there
shall not have occurred any change, or any development involving a prospective
change, in or affecting the business or properties of the Company or any of its
subsidiaries, not contemplated by the Prospectus which, in the Purchaser's
reasonable opinion, is so material and adverse as to make it impractical to
proceed with the offering or the delivery of the Notes to be purchased as
contemplated by the Terms Agreement.
(d) Prior to the Purchase Date, the Company shall have
furnished to the Purchaser such further information, certificates and documents
as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Purchaser and its counsel, this
Agreement and all obligations of the Purchaser hereunder may be canceled at, or
at any time prior to, the respective Purchase Date by the Purchaser. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless [Addressee] and each person who controls
[Addressee] within the meaning of either the 1933 Act or the 1934 Act against
any and all losses, claims, damages or liabilities and reasonable expenses
(including reasonable costs of investigation), joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary prospectus, any preliminary
supplemental prospectus, or the Prospectus, or in any amendment thereof or
supplement thereto, or arising out of or
17
<PAGE> 18
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal
or other expenses reasonably incurred by them, as the same shall be incurred,
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon any such untrue statement or omission,
or allegation thereof, which has been made therein or omitted therefrom in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of [Addressee] specifically for use in connection with
the preparation thereof or contained in the Statement of Eligibility and
Qualification on Form T-1 furnished by the Trustee and filed as an exhibit to
the Registration Statement, and (ii) the Company shall not be liable to
[Addressee] under the foregoing indemnity agreement with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of [Addressee] results from the fact [Addressee] sold Notes to a
person whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such delivery
is required by the 1933 Act if the Company has previously furnished copies
thereof to [Addressee] and the loss, claim, damage or liability of [Addressee]
results from an untrue statement or omission of a material fact contained in
the Preliminary Prospectus (excluding documents incorporated by reference)
which was corrected in the Prospectus (excluding documents incorporated by
reference) or the Prospectus as amended or supplemented.
(b) If any action or claim shall be brought or asserted
against [Addressee] or any person so controlling [Addressee] in respect to
which indemnity may be sought from the Company, [Addressee] or such controlling
person shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel and the payment
of all expenses. [Addressee] or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of [Addressee] or such controlling person unless (a) the employment
thereof has been specifically authorized by the Company in writing, (b) the
Company has failed to assume the defense and employ counsel or (c) the named
parties to any such action (including any impleaded parties) include both
[Addressee] or such controlling person and the Company and [Addressee] or such
controlling person shall have been advised by such counsel that the
representation of such indemnified party and the indemnifying party by the same
counsel would be inappropriate under applicable standards of professional
conduct due to actual or potential
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<PAGE> 19
differing interests between them (in which case, if [Addressee] or such
controlling person notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action on behalf of [Addressee] or such
controlling person, it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for [Addressee] and the
Other Agents and their respective controlling persons, which firm shall be
designated in writing by [Addressee]). The Company shall not be liable for any
settlement of any such action effected without its written consent, but if
settled with the written consent of the Company, or if there be a final
judgment for the plaintiff in any such action, the Company agrees to indemnify
and hold harmless [Addressee] and any such controlling person from and against
any loss or liability by reason of such settlement or judgment.
(c) [Addressee] agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
either the 1933 Act or the 1934 Act, each director of the Company and each
officer of the Company who signs the Registration Statement or any amendment
thereto to the same extent as the foregoing indemnity from the Company to
[Addressee], but only insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which was made therein in reliance upon
and in conformity with written information supplied to the Company by or on
behalf of [Addressee] specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which [Addressee] may otherwise have. In case any
action or claim shall be brought against the Company, or its directors or
officers or any such controlling person in respect of which indemnity may be
sought against [Addressee], [Addressee] shall have the rights and duties given
to the Company, and the Company and its directors or officers or any such
controlling person shall have the rights and duties given to [Addressee] by
paragraph (b) above.
(d) If the indemnification provided for in this Section 7
is unavailable to, or insufficient to hold harmless an indemnified party under
paragraph (a) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and
[Addressee] on the other from the offering of the Notes or (ii) if the
allocation provided in
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<PAGE> 20
clause (i) above is not permitted by applicable law (or to the extent that the
contribution so allocated is unobtainable from one or more contributing
parties), 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 [Addressee] on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and [Addressee] on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions
received by [Addressee]. The relative fault of the Company on the one hand and
of [Addressee] on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by [Addressee] and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and [Addressee] agree that it would not
be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if [Addressee] and the Other Agents
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 in paragraph (d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with defending any such action or
claim. Notwithstanding the provisions of this Section 7, [Addressee] shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Notes were offered, sold hereunder and distributed to the
public exceeds the amount of any damages which [Addressee] has otherwise been
required to pay by reason of 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.
(f) Without limiting the scope or intent of the preceding
paragraphs of this Section 7, the Company acknowledges that: (i) the
information contained in the documents incorporated by reference in the
Registration Statement and the Prospectus, each as amended or supplemented from
time to time, has been supplied by the Company; (ii) the Purchaser is
purchasing the Notes purchased by it pursuant to this Agreement in reliance
upon the documents incorporated by reference; (iii) the prices at which the
Notes are offered and sold to the
20
<PAGE> 21
public are affected by the documents incorporated by reference; and (iv) any
losses, claims, damages, liabilities and expenses incurred or suffered by
[Addressee], or any person controlling [Addressee], which arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission in the documents incorporated by reference or in the Prospectus, as
amended or supplemented, will have been caused by [Addressee]'s reliance upon
the documents incorporated by reference.
8. Termination of the Appointment of the Agent or any
Terms Agreement. (a) The appointment of the Agent and the obligations of the
Agent under this Agreement may be terminated at any time either by the Company
or by the Agent upon the giving of written notice of such termination to the
other party hereto. In the event of such termination, neither party shall have
any liability to the other party hereto, except as provided in the first
sentence of the second paragraph of Section 1(a) and Sections 4(e), 4(j), 4(k),
7 and 9 and except that, if at the time of termination an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of the Note or Notes relating thereto has not occurred,
the Company's representations and warranties stated in Section 3(b) and its
obligations under the third and fourth paragraphs of Section 1(a) and Sections
4(a), 4(b), 4(d), 4(f), 4(g), 4(h), 4(l), 4(m) and 4(n) shall remain in full
force and effect and not be terminated.
(b) Each Terms Agreement shall be subject to termination
in the absolute discretion of the Purchaser, by notice given to the Company
prior to delivery of any payment for Notes to be purchased thereunder, if prior
to such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been
declared by federal, New York or California State authorities or (iii) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Underwriters,
impracticable to market such Notes, such Term Agreements and all obligations of
the Purchaser hereunder may be cancelled at, or any time prior to, the Closing
Date in the absolute discretion of the Purchaser, without liability on the part
of any Purchaser to the Company.
Any notice under this Section 8 may be given by telegraph or
telephone but shall be subsequently confirmed by letter.
9. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of [Addressee] set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation
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<PAGE> 22
made by or on behalf of [Addressee] or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Notes. The provisions of Sections 4(j)
and 4(k) and Section 7 hereof shall survive the termination or cancellation of
this Agreement.
10. Notices. All communications hereunder will be in
writing and effective only on receipt and, if sent to [Addressee], will be
mailed, delivered or telegraphed and confirmed to it at ___________________,
New York, New York _____; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 733 Front Street, San Francisco,
California 94111, attention of the Treasurer.
11. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder. No
purchaser of the Notes from [Addressee] shall be deemed a successor because of
such purchase.
12. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of California.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your
22
<PAGE> 23
acceptance shall represent a binding agreement between the Company and
[Addressee].
Very truly yours,
USL Capital Corporation
By______________________________
Title:
By______________________________
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above-written.
[Addressee]
By__________________________
Title:
23
<PAGE> 24
EXHIBIT A
USL CAPITAL CORPORATION
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Series ___ (the "Notes") are to be offered on a
continuing basis by USL Capital Corporation (the "Company"). The Agent has
agreed to solicit purchases of the Notes. The Agent will not be obligated
to purchase Notes for its own account. The Notes are being sold
pursuant to a Distribution Agreement between the Company and the Agent dated
________________ (the "Distribution Agreement"). The Notes are to be issued
under an Indenture dated as of ____________(the "Indenture") between the
Company and _______ _________________________________, as Trustee (the
"Trustee"). The Notes will be registered with the Securities and
Exchange Commission (the "Commission"). The Trustee will be appointed as
registrar and paying agent with respect to the Notes.
The procedure to be followed during, and the specific terms of, the
solicitation of orders by the Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its Treasury
Department. The Company will advise the Agent and the Trustee in writing
of those persons handling administrative responsibilities with whom the
Agent and the Trustee are to communicate regarding orders to purchase
Notes and the details of their delivery.
The Notes will bear interest at either fixed rates ("Fixed Rate
Notes") or floating rates ("Floating Rate Notes"). Each Note will be
represented by either a Global Security (as defined hereinafter) delivered
to the Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note")
or a certificate delivered to the Holder thereof or a Person designated
by such Holder (a "Certificated Note"). Except in certain limited
circumstances, an owner of a Book-Entry Note will not be entitled to receive
a certificate representing such Note.
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, and Certificated Notes will be issued
in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture, the
Prospectus dated _______ __________ or the Prospectus Supplement dated
__________________ shall be used herein as therein defined. To the extent
that the procedures set forth below conflict with the provisions of the
Notes, the Indenture or the Distribution
A-1
<PAGE> 25
Agreement, the relevant provisions of the Notes, the Indenture and the
Distribution Agreement shall control.
A-2
<PAGE> 26
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions
described below, each in accordance with its obligations under a Letter of
Representations from the Company and the Trustee to DTC and a Medium-Term
Note Certificate Agreement between the Trustee and DTC and in accordance
with its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined
under "Settlement" below) for one or
more Book-Entry Notes, the Company
will issue a single global security in
fully registered form without coupons
(a "Global Security") representing up
to $150,000,000 principal amount of
all such Notes that have the same
Stated Maturity, redemption
provisions, repayment provisions,
Interest Payment Dates, Interest
Payment Period, Original Issue Date,
Original Issue Discount provisions
and, in the case of Fixed Rate Notes,
Interest Rate, or, in the case of
Floating Rate Notes, Initial Interest
Rate, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier,
Minimum Interest Rate (if any) and
Maximum Interest Rate (if any)
(collectively, "Terms"). Each Global
Security will be dated and issued as
of the date of its authentication by
the Trustee. Each Global Security
will bear an "Interest Accrual Date",
which will be (i) with respect to an
original Global Security (or any
portion thereof), its original
issuance date, and (ii) with respect
to any Global Security (or portion
thereof) issued subsequently upon
exchange of a Global Security or in
lieu of a destroyed, lost or stolen
Global Security, the most recent
Interest Payment Date to which
interest has been paid or duly
provided for on the predecessor
Global Security or Securities (or if
no such payment or provision has been
made, the original issuance date of
the predecessor Global Security),
regardless of the date of
authentication of such subsequently
A-3
<PAGE> 27
issued Global Security. No Global
Security will represent (i) both
Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any
Certificated Note.
Identification The Company has arranged with the
Numbers: CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP
Service Bureau") for the
reservation of a series of CUSIP
numbers (including tranche numbers),
which series consists of
approximately 900 CUSIP numbers and
relates to Global Securities
representing Book-Entry Notes. The
Company has obtained from the CUSIP
Service Bureau a written list of such
series of reserved CUSIP numbers and
has delivered to the Trustee and
DTC such written list of 900 CUSIP
numbers of such series. The
Company will assign CUSIP numbers
serially to Global Securities as
described below under Settlement
Procedure "B". DTC will notify
the CUSIP Service Bureau
periodically of the CUSIP numbers
that the Company has assigned to
Global Securities. At any time
when fewer than 100 of the reserved
CUSIP numbers remain unassigned to
Global Securities, and if it deems
necessary, the Company will reserve
additional CUSIP numbers for
assignment to Global Securities
representing Book-Entry Notes.
Upon obtaining such additional
CUSIP numbers, the Company shall
deliver a list of such additional
CUSIP numbers to the Trustee and
DTC.
Registration: Each Global Security will be
registered in the name of Cede &
Co., as nominee for DTC, on the
Security Register maintained under
the Indenture governing such Global
Security. The beneficial owner of
a Book-Entry Note (or one or
more indirect participants in DTC
designated by such owner) will
designate one or more participants
in DTC (with respect to such Note,
the "participants") to act as agent
or agents for such owner in
connection with the book-entry
system maintained by DTC, and DTC
will record in book-entry form,
in accordance with instructions
provided by such participants, a
credit balance with respect to
such Book-Entry Note in
A-4
<PAGE> 28
the account of such participants.
The ownership interest of such
beneficial owner in such Book-Entry
Note will be recorded through the
records of such participants or
through the separate records of such
participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will
be accomplished by book entries made
by DTC and, in turn, by participants
(and in certain cases, one or more
indirect participants in DTC) acting
on behalf of beneficial transferors
and transferees of such Book-Entry
Note.
Exchanges: The Trustee may deliver to DTC and
the CUSIP Service Bureau at any
time a written notice of
consolidation specifying (i) the
CUSIP numbers of two or more
Outstanding Global Securities that
represent Book-Entry Notes having
the same Terms and for which
interest has been paid to the same
date, (ii) a date, occurring at
least thirty days after such
written notice is delivered and at
least thirty days before the next
Interest Payment Date for such
Book-Entry Notes, on which such
Global Securities shall be
exchanged for a single replacement
Global Security and (iii) a new
CUSIP number, obtained from the
Company, to be assigned to such
replacement Global Security. Upon
receipt of such a notice, DTC will
send to its participants (including
the Trustee) a written
reorganization notice to the effect
that such exchange will occur on
such date. Prior to the specified
exchange date, the Trustee will
deliver to the CUSIP Service
Bureau a written notice setting
forth such exchange date and the
new CUSIP number and stating that,
as of such exchange date, the
CUSIP numbers of the Global
Securities to be exchanged will no
longer be valid. On the specified
exchange date, the Trustee will
exchange such Global Securities
for a single Global Security
bearing the new CUSIP number and
a new Interest Accrual Date, and the
CUSIP numbers of the exchanged
Global Securities will, in
accordance with CUSIP Service Bureau
procedures, be
A-5
<PAGE> 29
cancelled and not immediately
reassigned. Notwithstanding the
foregoing, if the Global Securities
to be exchanged exceed $150,000,000
in aggregate principal amount, one
Global Security will be
authenticated and issued to
represent each $150,000,000 of
principal amount of the exchanged
Global Securities and an additional
Global Security will be
authenticated and issued to
represent any remaining principal
amount of such Global Securities
(see "Denominations" below).
Maturities: Each Book-Entry Note will mature
on a date not less than nine
months nor more than 30 years
after the settlement date for such
Note, as selected by the purchaser
and approved by the Company.
Price to Public: Each Note will be issued at 100%
of its principal amount, unless
otherwise mutually agreed upon by
the purchaser and the Company and
specified in the applicable pricing
supplement.
Notice of The Trustee will notify DTC 60
prior Repayment Dates: days to each Repayment Date, if any,
with respect to a Note of the CUSIP
number of such Note, the Repayment
Date, the Repayment Price and the
exercise period.
Denominations: Book-Entry Notes will be issued in
principal amounts of $100,000 or any
amount in excess thereof that is
an integral multiple of $1,000.
Global Securities will be
denominated in principal amounts not
in excess of $150,000,000. If one
or more Book-Entry Note or Notes
having an aggregate principal amount
in excess of $150,000,000 would, but
not for the preceding sentence, be
represented by a single Global
Security, then one Global Security
will be issued to represent each
$150,000,000 principal amount of
such Book-Entry Note or Notes and
an additional Global Security will
be issued to represent any
remaining principal amount of such
Book-Entry Note or Notes. In such a
case, each of the Global Securities
representing such Book-Entry Note or
Notes shall be assigned the same
CUSIP number.
A-6
<PAGE> 30
Interest: General. Interest, if any, on
each Book-Entry Note will accrue
from the Interest Accrual Date of
the Global Security representing
such Note. Each payment of
interest on a Book-Entry Note
will include interest accrued to
but excluding the related
Interest Payment Date (provided
that in the case of Floating
Rate Notes which reset daily or
weekly, interest payments will
include interest accrued to but
excluding the Regular Record
Date immediately preceding the
related Interest Payment Date)
or Maturity (other than a Maturity
of a Fixed Rate Book-Entry Note
occurring on the thirty-first day
of a month, in which case such
payment will include interest
accruing to but excluding the
thirtieth day of such month).
Interest payable at the Maturity of
a Book-Entry Note will be
payable to the Person to whom
the principal of such Note is
payable. Standard & Poor's
Corporation will use the
information received in the
pending deposit message described
under Settlement Procedure "C"
below in order to include the
amount of any interest payable and
certain other information regarding
the related Global Security in
the appropriate weekly bond report
published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular
Record Date with respect to any
Interest Payment Date shall be
the date fifteen calendar days
immediately preceding such
Interest Payment Date whether or
not such date shall be a Business
Day.
Fixed Rate Book-Entry Note. Unless
otherwise specified pursuant to
Settlement Procedure "A" below,
interest payments on Fixed Rate
Book-Entry Notes will be made
semi-annually on February 1 and
August 1 of each year and at
Maturity; provided, however, that in
the case of a Fixed Rate Book-Entry
Note issued between a Regular
Record Date and an Interest Payment
Date or on an Interest Payment
Date, the first interest payment
will be made on the Interest
Payment Date following the next
A-7
<PAGE> 31
succeeding Regular Record Date to the
registered owner on such succeeding
Regular Record Date.
Floating Rate Book-Entry Notes.
Interest payments will be made on
Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually or
annually. Interest will be
payable, in the case of Floating
Rate Book-Entry Notes with a
monthly Interest Payment Period,
on the third Wednesday of each
month; with a quarterly Interest
Payment Period, on the third
Wednesday of March, June,
September and December of each
year; with a semi-annual Interest
Payment Period, on the third
Wednesday of the two months
specified pursuant to Settlement
Procedure "A" below; and with an
annual Interest Payment Period, on
the third Wednesday of the month
specified pursuant to Settlement
Procedure "A" below; provided,
however, that if an Interest
Payment Date for Floating Rate
Book-Entry Notes would otherwise
be a day that is not a Business Day
with respect to such Floating Rate
Book-Entry Notes, such Interest
Payment Date will be the next
succeeding Business Day with respect
to such Floating Rate Book-Entry
Notes, except in the case of a
LIBOR Note if such Business Day
is in the next succeeding
calendar month, in which event such
Interest Payment Date will be the
immediately preceding Business Day;
and provided, further, that in the
case of a Floating Rate Book-Entry
Note issued between a Regular
Record Date and an Interest
Payment Date or on an Interest
Payment Date, the first interest
payment will be made on the
Interest Payment Date following
the next succeeding Regular Record
Date to the registered owner on such
succeeding Regular Record Date.
Notice of Interest Payment and
Regular Record Date. On the first
Business Day of January, April,
July and October of each year, the
Trustee will deliver to the Company
a written list of Regular Record
Dates and Interest Payment Dates
that will occur with respect to the
A-8
<PAGE> 32
related Book-Entry Notes during the
six-month period beginning on such
first Business Day. Promptly after
each Interest Determination Date
for Floating Rate Notes, the
Calculation Agent will notify
Standard & Poor's Corporation and
the Trustee of the interest rates
determined on such Interest
Determination Date.
Calculation Fixed Rate Book-Entry Notes.
of Interest: Interest on Fixed Rate Book-Entry
Notes (including interest for partial
periods) will be calculated on
the basis of a year of twelve
thirty-day months. (Examples of
interest calculations are as
follows: The period from
December 15, 1990 to June 15,
1991, equals 6 months and 0
days, or 180 days; the interest
payable equals 180/360 times the
annual rate of interest times
the principal amount of the Note.
The period from December 17, 1990
to May 15, 1991, equals 4 months
and 28 days, or 148 days; the
interest payable equals 148/360
times the annual rate of interest
times the principal amount of the
Note.)
Floating Rate Book-Entry Notes.
Interest rates on Floating Rate
Book-Entry Notes will be
determined as set forth in the
form of Notes. Interest on
Floating Rate Book-Entry Notes
will be calculated on the basis
of actual days elapsed and a year
of 360 days except that in the case
of Treasury Rate Notes, interest
will be calculated on the basis
of the actual number of days in
the year.
Payments of Payments of Interest Only. Promptly
Principal after each Regular Record Date, the
and Interest: Trustee will deliver to the
Company and DTC a written notice
specifying by CUSIP number the
amount of interest to be paid on
each Global Security on the
following Interest Payment Date
(other than an Interest Payment
Date coinciding with Maturity) and
the total of such amounts. DTC
will confirm the amount payable on
each Global Security on such
Interest Payment Date by reference
to the daily bond reports published
by Standard &
A-9
<PAGE> 33
Poor's Corporation. The Company will
pay to the Trustee (in immediately
available funds) the total amount of
interest due on such Interest Payment
Date (other than at Maturity), and
the Trustee will pay such amount to
DTC at the times and in the manner
set forth below under "Manner of
Payment". If any Interest Payment
Date for or the Maturity of a
Book-Entry Note is not a Business
Day, the payment due on such day
shall be made on the next succeeding
Business Day and no interest shall
accrue on such payment for the
period from and after such Interest
Payment Date or Maturity, as the
case may be.
Payments at Maturity. On or about
the first Business Day of each
month, the Trustee will deliver to
the Company and DTC a written list
of principal and interest to be
paid on each Global Security
maturing either at Stated Maturity
or on a Redemption or Repayment
Date in the following month. The
Company, the Trustee and DTC will
confirm the amounts of such
principal and interest payments
with respect to each such Global
Security on or about the fifth
Business Day preceding the Maturity
of such Global Security. The
Company will pay to the Trustee
(in immediately available funds)
the principal amount of such
Global Security, together with
interest due at such Maturity. The
Trustee will pay such amounts to
DTC at the times and in the
manner set forth below under
"Manner of Payment". If any
Maturity of a Global Security
representing Book-Entry Notes is
not a Business Day, the payment due
on such day shall be made on the
next succeeding Business Day and no
interest shall accrue on such
payment for the period from and
after such Maturity. Promptly
after payment to DTC of the
principal and interest due at the
Maturity of such Global Security,
the Trustee will cancel such Global
Security in accordance with the
terms of the Indenture and deliver
it to the Company with a certificate
with respect to such cancellation.
A-10
<PAGE> 34
Manner of Payment. The total
amount of any principal and interest
due on Global Securities on any
Interest Payment Date or at Maturity
shall be paid by the Company to the
Trustee in funds available for
immediate use by such Trustee as of
9:30 A.M. (New York City time) on
such date. The Company will make
such payment on such Global
Securities by wire transfer or by
automated clearing house funds to
the Trustee. The Company will
confirm such instructions in writing
to the Trustee. Prior to 10 A.M.
(New York City time) on each
Maturity Date or as soon as possible
thereafter, the Trustee will pay by
separate wire transfer (using
Fedwire message entry instructions
in a form previously specified by
DTC) to an account at the Federal
Reserve Bank of New York previously
specified by DTC, in funds available
for immediate use by DTC, each
payment of interest or principal
(together with interest thereon) due
on a Global Security on such
Maturity Date. On each Interest
Payment Date, interest payments
shall be made to DTC in same day
funds in accordance with existing
arrangements between the Trustee and
DTC. Thereafter on each such date,
DTC will pay, in accordance with its
SDFS operating procedures then in
effect, such amounts in funds
available for immediate use to the
respective participants in whose
names the Book-Entry Notes
represented by such Global
Securities are recorded in the
book-entry system maintained by DTC.
Neither the Company nor the Trustee
shall have any direct responsibility
or liability for the payment by DTC
to such participants of the
principal of and interest on the
Book-Entry Notes.
Withholding Taxes. The amount of
any taxes required under applicable
law to be withheld from any
interest payment on a Book-Entry
Note will be determined and withheld
by the participant, indirect
participant in DTC or other Person
responsible for forwarding payments
and
A-11
<PAGE> 35
materials directly to the beneficial
owner of such Note.
Acceptance and Unless otherwise instructed by the
Rejection of Company, the Agent will advise the
Offers: Company promptly by telephone of all
offers to purchase Book-Entry Notes
received by the Agent other than any
offers rejected by it in whole or in
part in the reasonable exercise of
its discretion. Unless otherwise
agreed by the Company and the Agent,
the Company has the sole right to
accept offers to purchase Book-Entry
Notes and may reject any such offer
in whole or in part.
Settlement: The receipt by the Company of
immediately available funds in
payment for a Book-Entry Note and
the authentication and issuance of
the Global Security representing
such Note shall constitute
"settlement" with respect to such
Note. All orders accepted by the
Company will be settled on the fifth
Business Day succeeding the date of
acceptance pursuant to the timetable
for settlement setforth below,
unless the Company and the purchaser
agree to settlement at a different
time.
Settlement Settlement Procedures with regard to
Procedures: each Book-Entry Note sold by the
Company through the Agent, as agent,
shall be as follows:
A. The Agent will advise the
Company by telephone,
facsimile or electronic
transmission of the following
settlement information:
1. Principal amount.
2. Stated Maturity.
3. In the case of a Fixed
Rate Book-Entry Note,
the Interest Rate and,
in the case of a
Floating Rate Book-
Entry Note, the Initial
Interest Rate (if known
at such time), Base
Rate, Index Maturity,
Interest Reset Period,
Interest Reset Dates,
Spread or Spread
Multiplier (if any),
Minimum Interest Rate
(if any) and
A-12
<PAGE> 36
Maximum Interest
Rate (if any).
4. Interest Payment
Period and Interest
Payment Dates.
5. Redemption
provisions, if any.
6. Repayment
provisions, if any.
7. Settlement date.
8. Price.
9. Agent's commission.
10. Whether the Note is
an Original Issue
Discount Note.
B. The Trustee will assign a
CUSIP number to the
Global Security representing
such Note and then advise the
Company and the Agent by
telephone, facsimile or
electronic transmission of
the CUSIP number, the
Initial Accrual Period and
the method used. The Trustee
will also notify the Agent
of such CUSIP number by
telephone as soon as
practicable. The Company's
approval of the settlement
information described in
Settlement Procedure "A"
above shall constitute a
representation and warranty
by the Company to the
Trustee and the Agent that
(i) such Note is then, and
at the time of issuance and
sale thereof will be, duly
authorized for issuance and
sale by the Company, (ii)
such Note, and the Global
Security representing such
Note, will conform with the
terms of the Indenture and
(iii) upon authentication
and delivery of such Global
Security, the aggregate
principal amount of all
Notes issued under the
Indenture will not exceed
$_____________________ or the
equivalent thereof in one or
more foreign currencies or
currency units (except for
Securities authenticated
and delivered upon
registration of transfer
of, in exchange for, or in
lieu of, Securities
pursuant to Section 304,
305,306, 906, 1107 or 1503
of the Indenture).
A-13
<PAGE> 37
C. The Trustee will enter a
pending deposit message
through DTC's Participant
Terminal System, providing
the following settlement
information to DTC, the
Agent, Standard & Poor's
Corporation, the Exchange
Rate Agent (if any) and
the Calculation Agent (if
any):
1. The information
set forth in
Settlement
Procedure "A".
2. Identification as a
Fixed Rate
Book-Entry Note or a
Floating Rate
Book-Entry Note.
3. Initial Interest
Payment Date for
such Note, number of
days by which such
date succeeds the
related DTC record
date (which, in the
case of Floating
Rate Notes which
re-set daily or
weekly, shall be the
date five calendar
days immediately
preceding the
applicable Interest
Payment Date and in
the case of all
other Notes shall be
the Regular Record
Date as defined in
the Note) and amount
of interest payable
on such Interest
Payment Date.
4. The Interest Payment
Period and Interest
Payment Dates.
5. CUSIP number of the
Global Security
representing such
Note.
6. Whether such Global
Security will
represent any other
Book-Entry Note
(to the extent known
at such time).
D. The Company will deliver to
the Trustee a pre-printed
or pre-typed Global Security
representing such Note in
forms that have been
approved by the Company, the
Agent and the Trustee.
E. The Trustee will complete
such Note, stamp the
appropriate legend (if such
legend is not printed or
typed on such Note) and
authenticate the Global
Security representing such
Note.
A-14
<PAGE> 38
F. DTC will credit such Note to
the Trustee's participant
account at DTC.
G. The Trustee will enter a SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit
such Note to such Trustee's
participant account and
credit such Note to the
Agent's participant account
and (ii) debit the Agent's
settlement account and
credit such Trustee's
settlement account for an
amount equal to the price of
such Note less the Agent's
commission. The entry of
such a deliver order shall
constitute a representation and
warranty by such Trustee to DTC
that (i) the Global
Security representing such
Book-Entry Note has been
issued and authenticated
and (ii) the Trustee is
holding such Global
Security pursuant to the
Medium-Term Note
Certificate Agreement between
the Trustee and DTC.
H. The Agent will enter a SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit
such Note to the Agent's
participant account and
credit such Note to the
participant accounts of the
participants with respect to
such Note and (ii) to debit
the settlement accounts of
such participants and
credit the settlement
account of the Agent for an
amount equal to the price
of such Note.
I. Transfers of funds in
accordance with SDFS deliver
orders described in
Settlement Procedures "G"
and "H" will be settled in
accordance with SDFS
operating procedures in
effect on the settlement
date.
J. The Trustee will wire transfer
to the account of the Company
funds available for immediate
use in the amount transferred
to such Trustee
A-15
<PAGE> 39
in accordance with Settlement
Procedure "G".
K. The Agent will confirm the
purchase of such Note to
the purchaser either by
transmitting to the
participants with respect to
such Note a confirmation
order or orders through DTC's
institutional delivery system
or by mailing a written
confirmation to such
purchaser.
Settlement For orders of Book-Entry Notes solicited
Procedures by the Agent, as agent, and accepted by the
Timetable: Company for settlement on the first
Business Day after the sale date,
Settlement Procedures "A" through "K" set
forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------- ----
<S> <C>
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on day before
settlement date
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
</TABLE>
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be
completed as soon as practicable but no
later than 11:00 A.M., 12 Noon and 2:00 P.M.,
as the case may be, on the first Business
Day after the sale date. If the initial
interest rate for a Floating Rate Book-Entry
Note has not been determined at the time
that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been
determined but no later than 12 Noon and 2:00
P.M., respectively, on the second Business Day
before the settlement date. Settlement
Procedure "I" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
A-16
<PAGE> 40
specified in the SDFS operating procedures
in effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, the Trustee will
deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
P.M. on the Business Day immediately preceding
the scheduled settlement date.
Failure to If the Trustee fails to enter a SDFS
Settle: deliver order with respect to a
Book-Entry Note pursuant to Settlement
Procedure "G", the Trustee may deliver to
DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note
to the Trustee's participant account. DTC
will process the withdrawal message,
provided that such Trustee's participant
account contains a principal amount of the
Global Security representing such Note that
is at least equal to the principal
amount to be debited. If a withdrawal
message is processed with respect to all
the Book-Entry Notes represented by a Global
Security, the Trustee will mark such Global
Security "cancelled", make appropriate
entries in the Trustee's records and send
such cancelled Global Security to the
Company. The CUSIP number assigned to such
Global Security shall, in accordance with
CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
If a withdrawal message is processed with
respect to one or more, but not all, of the
Book-Entry Notes represented by a Global
Security, the Trustee will exchange such
Global Security for two Global Securities,
one of which shall represent such
Book-Entry Note or Notes and shall be
cancelled immediately after issuance and
the other of which shall represent the
remaining Book-Entry Notes previously
represented by the surrendered Global
Security and shall bear the CUSIP number of
the surrendered Global Security.
If the purchase price for any Book-Entry
Note is not timely paid to the participants
with respect to such Note by the beneficial
purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf
of such purchaser), such participants and, in
A-17
<PAGE> 41
turn, the Agent for such Note may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and
"G", respectively. Thereafter, the Trustee
will deliver the withdrawal message and
take the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to one or
more, but not all, of the Book-Entry Notes
to have been represented by a Global
Security, the Trustee will provide, in
accordance with Settlement Procedures "D"
and "E", for the authentication and issuance
of a Global Security representing the other
Book-Entry Notes to have been represented by
such Global Security and will make
appropriate entries in its records.
Procedure for When the Company has determined to change
Rate Changes: the interest rates of Notes being offered, it
will promptly advise the Agent and the Agent
will forthwith suspend solicitation of
offers. The Agent will telephone the Company
with recommendations as to the changed
interest rates. At such time as the Company
has advised the Agent of the new interest
rates, the Agent may resume solicitation
of offers. Until such time only
"indications of interest" may be recorded.
Within two Business Days after any sale of
Notes, the Company will file with the
Securities and Exchange Commission a pricing
supplement to the prospectus and prospectus
supplement relating to such Notes that
reflects the applicable interest rates and
other terms and will deliver copies of such
pricing supplement to the Agent in
accordance with the terms of the Distribution
Agreement.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in
Amendment or the Distribution Agreement, the Company may
Supplement: instruct the Agent to suspend solicitation
of purchases of Book-Entry Notes at any
time. Upon receipt of such instructions,
the Agent will forthwith suspend such
solicitations until such time as it has been
advised by the
A-18
<PAGE> 42
Company that such solicitations may be
resumed. The Company will, consistent
with its obligations under the Distribution
Agreement, promptly advise the Agent and the
Trustee whether orders outstanding at the
time the Agent suspends solicitation may
be settled and whether copies of such
prospectus and prospectus supplement as
in effect at the time of the suspension,
together with the appropriate pricing
supplement, may be delivered in connection
with the settlement of such orders. The
Company will have the sole responsibility for
such decision and for any arrangements that
may be made in the event that the Company
determines that such orders may not be
settled or that copies of such prospectus,
prospectus supplement and pricing supplement
may not be so delivered.
Delivery of A copy of the prospectus and prospectus
Prospectus: supplement relating to the Notes and a
pricing supplement relating to a Book-Entry
Note must accompany or precede the earliest
of any written offer of such Note,
confirmation of the purchase of such Note or
payment for such Note by its purchaser. If
notice of a change in the terms of the
Book-Entry Notes is received by the Agent
between the time an order for a Book-Entry
Note is placed and the time written
confirmation thereof is sent by the Agent
to a customer or his agent, such
confirmation shall be accompanied by a
prospectus, prospectus supplement and pricing
supplement setting forth the terms in effect
when the order was placed. Subject to
the preceding paragraph, the Agent will
deliver a prospectus, prospectus supplement
and pricing supplement as herein described
with respect to each Book-Entry Note sold
by it.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Issuance: Each Certificated Note will be dated and
issued as of the date of its
authentication by the Trustee. Each
Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an
original Certificated Note (or any portion
thereof), its original issuance date
(which will be the settlement date) and (ii)
with respect to any Certificated Note (or
portion thereof) issued subsequently upon
transfer or exchange of a
A-19
<PAGE> 43
Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note,
the Original Issue Date of the
predecessor Certificated Note, regardless
of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and A Certificated Note may be presented for
Exchanges: transfer or exchange at the office of the
Trustee in [_________________]. Certificated
Notes will be exchangeable for other
Certificated Notes having identical terms
but different authorized denominations
without service charge. Certificated Notes
will not be exchangeable for Book-Entry
Notes.
Maturities: Each Certificated Note will mature on a date
not less than nine months or more than 30
years from the settlement date for such
Note, as selected by the purchaser and
approved by the Company.
Price to Public: Each Note will be issued at 100% of its
principal amount, unless otherwise mutually
agreed upon by the purchaser and the
Company and specified in the applicable
pricing supplement.
Denominations: Certificated Notes denominated in U.S.
dollars will be issued in denominations
of $100,000 or any amount in excess
thereof that is an integral multiple of
$1,000. The authorized denominations
of Notes denominated in a currency other
than U.S. dollars will be specified pursuant
to "Settlement Procedures" below, and set
forth in such Notes and the applicable
pricing supplement.
Interest: General. Interest, if any, on each
Certificated Note will accrue from the
Original Issue Date of such Note for the
first interest period and from the most
recent Interest Payment Date to which
interest has been paid for all subsequent
interest periods. Each payment of
interest on a Certificated Note will
include interest accrued to but excluding
the related Interest Payment Date or
Maturity (other than a Maturity of a Fixed
Rate Certificated Note occurring on the
thirty-first day of a month, in which
case such payment will include
A-20
<PAGE> 44
interest accruing to but excluding the
thirtieth day of such month).
Regular Record Dates. The Regular Record
Date with respect to any Interest Payment
Date shall be the date fifteen calendar days
immediately preceding such Interest Payment
Date whether or not such date shall be a
Business Day.
Fixed Rate Certificated Notes. Unless
otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on
Fixed Rate Certificated Notes will be made
semi-annually on February 1 and August 1 of
each year and at Maturity; provided,
however, that in the case of a Fixed
Rate Certificated Note issued between a
Regular Record Date and an Interest
Payment Date or on an Interest Payment Date,
the first interest payment will be made on
the Interest Payment Date following the next
succeeding Regular Record Date.
Floating Rate Certificated Notes.
Interest payments will be made on Floating
Rate Certificated Notes monthly,
quarterly, semi-annually or annually.
Interest will be payable, in the case
of Floating Rate Certificated Notes with
a monthly Interest Payment Period, on the
third Wednesday of each month; with a
quarterly Interest Payment Period, on the
third Wednesday of March, June, September and
December of each year; with a semi-annual
Interest Payment Period, on the third
Wednesday of the two months specified
pursuant to Settlement Procedure "A" below;
and with an annual Interest Payment
Period, on the third Wednesday of the
month specified pursuant to Settlement
Procedure "A" below; provided, however,
that if an Interest Payment Date for
Floating Rate Certificated Notes would
otherwise be a day that is not a Business
Day with respect to such Floating Rate
Certificated Notes, such Interest
Payment Date will be the next succeeding
Business Day with respect to such
Floating Rate Certificated Notes, except in
the case of a LIBOR Note if such Business
Day is in the next succeeding calendar
month, in which event such Interest Payment
Date will be the immediately preceding
Business Day; and provided, further, that
in the case of a Floating Rate Certificated
Note issued
A-21
<PAGE> 45
between a Regular Record Date and an Interest
Payment Date or on an Interest Payment Date,
the first interest payment will be made
on the Interest Payment Date following the
next succeeding Regular Record Date.
Calculation of Fixed Rate Certificated Notes. Interest
Interest: on Fixed Rate Certificated Notes (including
interest for partial periods) will be
calculated on the basis of a year of
twelve thirty-day months. (Examples of
interest calculations are as follows:
December 15, 1990 to June 15, 1991, equals
6 months and 0 days or 180 days; the interest
payable equals 180/360 times the annual
rate of interest times the principal amount
of the Note. The period from December 17,
1990 to May 15, 1991 equals 4 months and 28
days, or 148 days; the interest payable
equals 148/360 times the annual rate of
interest times principal amount of the Note.)
Floating Rate Certificated Notes.
Interest rates on Floating Rate
Certificated Notes will be determined as
set forth in the form of Notes. The
Company and the Trustee will confirm the
amount of the initial interest payment due
on any Floating Rate Certificated Note for
which the initial Interest Period is shorter
or longer than the Index Maturity. Interest
on Floating Rate Certificated Notes will be
calculated on the basis of actual days
elapsed and a year of 360 days except that in
the case of Treasury Rate Notes, interest
will be calculated on the basis of the actual
number of days in the year.
Payments of The Trustee, in its capacity as paying
Principal and agent, will pay the principal amount of
Interest: each Certificated Note at Maturity upon
presentation of such Note to the Trustee.
Such payment, together with payment of
interest due at Maturity of such Note, will
be made in funds made available by the
Company for immediate use by the Trustee
and in turn by the Holder of such Note.
Certificated Notes presented to the Trustee
at Maturity for payment will be cancelled by
the Trustee and delivered to the Company
with a certificate with respect to such
cancellation. All interest payments on a
Certificated Note (other than interest due
at Maturity) will be made by check drawn on
the Trustee (or another Person appointed by
such
A-22
<PAGE> 46
Trustee) and mailed by the Trustee to
the Person entitled thereto as provided in
such Note and the Indenture. The Company
may at its option elect to make payments
in U.S. dollars of interest on Notes (other
than interest payable at Maturity) by wire
transfer of immediately available funds,
but only if appropriate payment instructions
have been received in writing by the
Trustee not less than fifteen calendar days
prior to the related Interest Payment
Date. Following each Regular Record Date
and Special Record Date, the Trustee will
furnish the Company with a list of
interest payments to be made on the following
Interest Payment Date for each Certificated
Note and in total for all such Certificated
Notes. Interest at Maturity will be payable
to the Person to whom the payment of
principal is payable. The Trustee will
provide monthly to the Company lists of
principal and interest to be paid on
Certificated Notes maturing in the next
month. The Trustee will be responsible for
withholding taxes on interest paid on
Certificated Notes as required by applicable
law.
If any Interest Payment Date for or the
Maturity of a Certificated Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding
Business Day and no interest shall accrue on
such payment for the period from and after
such Interest Payment Date or Maturity, as
the case may be.
Acceptance and Unless otherwise instructed by the
Rejection Company, the Agent will advise the
of Offers: Company promptly by telephone of all offers
to purchase Certificated Notes received by
the Agent, other than those rejected by
it in whole or in part in the reasonable
exercise of its discretion. Unless
otherwise agreed by the Company and the
Agent, the Company has the sole right to
accept offers to purchase Notes and may
reject any such offer in whole or in part.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered
to the Agent and the Agent's delivery of
such Note against receipt of immediately
available funds shall, with respect to such
Note,
A-23
<PAGE> 47
constitute "settlement". All orders
accepted by the Company will be settled not
later than the close of business on the
fifth Business Day succeeding the date of
acceptance, unless the Company and the
purchaser agree to settlement on a later
date; provided, however, that in the case of
a delayed settlement the Company will
notify the Trustee at least twenty-four
hours prior to the time of settlement.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company through
the Agent, as agent, shall be as follows:
A. The Agent will advise the
Company by telephone, facsimile
or electronic transmission of the
following settlement information:
1. Name in which such Note is to
be registered ("Registered
Owner").
2. Address of the Registered
Owner and address for payment
of principal and interest.
3. Taxpayer identification number
of the Registered Owner (if
available).
4. Principal amount.
5. Stated Maturity.
6. In the case of a Fixed Rate
Certificated Note, the
Interest Rate and, in the
case of a Floating Rate
Certificated Note, the
Initial Interest Rate (if
known at such time), Base
Rate, Index Maturity,
Interest Reset Period,
Interest Reset Dates, Spread
or Spread Multiplier (if
any), Minimum Interest Rate
(if any) and Maximum Interest
Rate (if any).
7. Interest Payment Period and
Interest Payment Dates.
8. Specified Currency and
whether the option to elect
payment in a Specified
Currency applies and if the
Specified Currency is not
U.S. dollars, the authorized
denominations.
9. Redemption provisions, if any.
10. Repayment provisions, if any.
11. Settlement date.
12. Price (including currency).
13. Agent's commission.
A-24
<PAGE> 48
14. Whether the Note is an Original Issue Discount Note.
B. The Trustee will advise the Company,
the Exchange Rate Agent (if any) and
the Calculation Agent (if any) by
telephone, facsimile or electronic
transmission of the CUSIP number,
Initial Accrual Period and the
method used. The Company's
approval of the settlement
information described in Settlement
Procedure "A" above shall constitute
a representation and warranty by the
Company to the Trustee and the Agent
that (i) such Note is then, and at
the time of issuance and sale
thereof will be, duly authorized for
issuance and sale by the Company,
(ii) such Note will conform with the
terms of the Indenture and (iii) upon
authentication and delivery of such
Note, the aggregate initial
offering price of all Notes issued
under the Indenture will not exceed
$________________ aggregate
principal amount or the equivalent
thereof in foreign currencies or
currency units (except for securities
authenticated and delivered upon
registration of transfer, in
exchange for or in lieu of,
securities pursuant to Section 304,
305, 306, 906, 1107 or 1503 of the
Indenture).
C. The Company will deliver to the
Trustee a pre-printed five-ply
packet for such Note, which packet
will contain the following documents
in forms that have been approved by
the Company and the Agent:
1. Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note
and authenticate such Note and
deliver it (with the confirmation)
and Stubs One and Two to the Agent,
and the Agent will acknowledge
receipt of the Note by stamping or
otherwise marking Stub One and
returning it to the Trustee. Such
delivery will be made only against
such acknowledgement of receipt and
evidence
A-25
<PAGE> 49
that instructions have been given by
the Agent for payment to the account
of the Company in funds available
for immediate use, of an amount
equal to the price of such Note less
the Agent's commission. In the event
that the instructions given by the
Agent for payment to the account of
the Company are revoked, the Company
will as promptly as possible (and in
any event not later than the Business
Day following the Settlement Date)
wire transfer to the account of the
Agent an amount of immediately
available funds equal to the amount
of such payment made.
E. The Agent will deliver such Note
(with confirmation) to the customer
against payment in immediately
payable funds. The Agent will
obtain the acknowledgement of
receipt of such Note by retaining
Stub Two.
F. The Trustee will send Stub Three to
the Company by first-class mail
upon request. The Trustee will
also send a copy of the front of
such Note to the Exchange Rate Agent
(if any) and the Calculation Agent
(if any). Periodically, the Trustee
will also send to the Company a
statement setting forth the
principal amount of the Notes
Outstanding as of that date and
setting forth a brief description
of any sales of which the Company
has advised the Trustee but which
have not yet been settled.
Settlement For offers of Certificated Notes solicited
Procedures by the Agent, as agent, and accepted by the
Timetable: Company, Settlement Procedures "A" through
"F" set forth above shall be completed on
or before the respective times (New York
City time) set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------- ----
<S> <C>
A 3:00 P.M. on day before
settlement date
B 5:00 P.M. on day before
settlement date
</TABLE>
A-26
<PAGE> 50
<TABLE>
<S> <C>
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
</TABLE>
Failure to If a purchaser fails to accept delivery
Settle: of and make payment for any Certificated
Note, the Agent will notify the Company and
the Trustee by telephone and return such
Note to the Trustee. Upon receipt of the
Note, the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited thereto in respect of such Note.
Such wire transfer will be made on the
settlement date, if possible, and in any
event not later than the day following the
settlement date. If the failure shall have
occurred for any reason other than a
default by the Agent in the performance
of its obligations hereunder and under the
Distribution Agreement, then the Company
will reimburse the Agent or the Trustee,
as appropriate, on an equitable basis for
its loss of the use of the funds during the
period when they were credited to the
account of the Company. Immediately upon
receipt of the Certificated Note in respect
of which such failure occurred, the
Trustee will mark such Note "cancelled",
make appropriate entries in its records and
send such Note to the Company.
Procedure for When the Company has determined to change
Rate Changes: the interest rates of Notes being offered, it
will promptly advise the Agent and the Agent
will forthwith suspend solicitation of offers.
The Agent will telephone the Company
with recommendations as to the changed
interest rates. At such time as the Company
has advised the Agent of the new interest
rates, the Agent may resume solicitation of
offers. Until such time only "indications of
interest" may be recorded. Within two
business days after any sale of Notes, the
Company will file with the Securities and
Exchange Commission a pricing supplement to
the prospectus and prospectus supplement
relating to such Notes that reflects the
applicable interest rates and other terms and
will deliver copies of such pricing
supplement to the Agent in accordance with
the terms of the Distribution Agreement.
A-27
<PAGE> 51
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the
Amendment or Distribution Agreement, the Company may
Supplement: instruct the Agent to suspend solicitation
of purchases of Certificated Notes at any
time. Upon receipt of such instructions,
the Agent will forthwith suspend such
solicitations until such time as it has
been advised by the Company that such
solicitations may be resumed. The Company
will, consistent with its obligations under
the Distribution Agreement, promptly advise
the Agent and the Trustee whether orders
outstanding at the time the Agent suspends
solicitation may be settled and whether
copies of such prospectus and prospectus
supplement as in effect at the time of
the suspension, together with the
appropriate pricing supplement, may be
delivered in connection with the settlement
of such orders. The Company will have the
sole responsibility for such decision and for
any arrangements that may be made in the
event that the Company determines that such
orders may not be settled or that copies of
such prospectus, prospectus supplement and
pricing supplement may not be so delivered.
Delivery of A copy of the prospectus and prospectus
Prospectus: supplement relating to the Notes and a
pricing supplement relating to a
Certificated Note must accompany or precede
the earlier of any written offer of such
Note, delivery of such Note, confirmation of
the purchase of such Note and payment for
such Note by its purchaser. If notice of a
change in the terms of the Certificated
Notes is received by the Agent between the
time an order for a Certificated Note
is placed and the time written
confirmation thereof is sent by the Agent to
a customer or his agent, such confirmation
shall be accompanied by a prospectus,
prospectus supplement and pricing supplement
setting forth the terms in effect when
the order was placed. Subject to the
preceding paragraph, the Agent will
deliver a prospectus, prospectus supplement
and pricing supplement as herein described
with respect to each Note sold by it.
A-28
<PAGE> 52
EXHIBIT B
USL Capital Corporation
Medium-Term Notes, Series __
Due from Nine Months to __ Years from Date of Issue
TERMS AGREEMENT
__________, 199_
USL Capital Corporation
733 Front Street
San Francisco, California 94111
Attention: ____________________
Re: Distribution Agreement dated __________
Subject to the terms and conditions of the Distribution
Agreement dated ___________, 199_, the undersigned agrees to purchase the
following principal amount of Notes:
__________________
Principal Amount
Interest Rate or Formula:
Maturity Date:
Interest Payment Dates:
Specified Currency:
Redemption and Repayment Provisions:
Public Offering Price:
Discount: % of Principal Amount
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
The certificate referred to in Section 6(b)(i) of the
Distribution Agreement, the opinions referred to in Section 6(b)(ii) and in
Section 6(b)(iii) of the Distribution
B-1
<PAGE> 53
Agreement and the accountants' letter referred to in Section 6(b)(iv) of the
Distribution Agreement will be required.
[Purchaser]
By_____________________________
Title:
Accepted:
USL Capital Corporation
By______________________________
Title:
By______________________________
Title:
B-2
<PAGE> 54
EXHIBIT C
FORM OF OPINION OF
COUNSEL TO THE COMPANY
The opinion of counsel for the Company, to be delivered
pursuant to Section 4(m), 5(b) or 6(b) of this Agreement, shall be to the
effect set forth below. All references to the "Registration Statement" shall
be to the Registration Statement as amended as of the date of such opinion and
all references to the "Prospectus" shall be to the Prospectus, as amended or
supplemented as of the date of such opinion.
(i) each of the Company and its significant subsidiaries,
as defined in Regulation S-X under the 1933 Act (the "Significant
Subsidiaries"), is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, is authorized
by its charter to transact the business in which it is engaged, is duly
qualified to conduct the business in which it is engaged in all jurisdictions
in which its failure so to qualify would materially adversely affect the
results of operations or financial condition of the Company and its
subsidiaries taken as a whole, and to the best of such counsel's knowledge
holds all material approvals, authorizations, orders, licenses, certificates
and permits from governmental authorities necessary for the conduct of its
business as described in the Prospectus as amended or supplemented;
(ii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
non-assessable;
(iii) all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and are owned directly or indirectly by the
Company free and clear of all liens or encumbrances except that the Company
owns, directly or indirectly, the percent indicated of the outstanding capital
stock or partnership interest of each of the following subsidiaries:
(iv) the Indenture has been qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, reorganization, fraudulent transfer, insolvency, moratorium, or
other laws affecting enforcement of creditors' rights or by the application of
equitable principles;
(v) the Notes have been duly authorized and, when
executed, authenticated in accordance with the provisions of the
C-1
<PAGE> 55
Indenture and delivered to and paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, reorganization, fraudulent
transfer, insolvency, moratorium, or other laws affecting enforcement of
creditors' rights or by the application of equitable principles;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as (i) rights to indemnity
hereunder may be limited under applicable federal or state securities law and
(ii) enforcement thereof may be limited by bankruptcy, reorganization,
fraudulent transfer, insolvency, moratorium, or other laws affecting
enforcement of creditors' rights or by the application of equitable principles;
(vii) no authorization, consent or approval of, or
registration or filing with, any governmental or public body or regulatory
authority is required on the part of the Company for the issuance of the Notes
in accordance with the provisions of the Indenture or the sale of the Notes
pursuant to this Agreement, other than registration of the Notes under the 1933
Act, qualification of the Indenture under the Trust Indenture Act, and
compliance with the securities or Blue Sky laws of various jurisdictions;
(viii) the execution and delivery of the Indenture and this
Agreement, the issuance of the Notes in accordance with the provisions of the
Indenture and the sale of the Notes pursuant to this Agreement do not conflict
with or result in the breach of any of the terms or provisions of, or
constitute a default under, or violate any indenture, loan agreement, lease,
other agreement or instrument, law, regulation, court order or decree, in each
case known to such counsel, to which the Company or any Significant Subsidiary
is a party or by which it is bound, the effect of which in the aggregate would
have a material adverse effect on the financial condition, earnings, business,
or properties of the Company and its subsidiaries considered as a whole, nor
will such action result in the violation of any of the provisions of the
charter or by-laws of the Company or any of its Significant Subsidiaries;
(ix) the statements contained in the Prospectus with
respect to the description of the Notes, insofar as such statements constitute
summaries of the documents or matters referred to therein, fairly present the
information required or purported to be shown with respect to such documents or
matters;
(x) such counsel does not know of any legal or
governmental proceeding required to be described in the Registration Statement
or the Prospectus which is not described as required, nor of any material
contract or other material
C-2
<PAGE> 56
document required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement which is
not described or filed as required;
(xi) the Registration Statement and the Prospectus and any
amendment or supplement thereto (except for the financial statements and other
financial and statistical data included therein as to which such counsel does
not express an opinion) comply as to form in all material respects with the
requirements of the 1933 Act, and nothing has come to the attention of such
counsel to cause him to believe that the Registration Statement, or any
amendment thereof, at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any amendment or supplement thereto, as of the date
of this Agreement and as of the date of such opinion, includes an untrue
statement of a material fact or omits 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;
(xii) to the knowledge of such counsel, neither the Company
nor any subsidiary is in violation of its charter or by-laws or in default in
any respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any indenture, loan agreement, lease, or other agreement or instrument to
which it is a party (the effect of which in the aggregate would have a
material adverse effect on the financial condition, earnings, business, or
properties of the Company and its subsidiaries considered as a whole); and
(xiii) the Registration Statement has become effective under
the 1933 Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of California or the United States, to the extent such counsel shall deem
proper and specify in such opinion, upon the opinion of other counsel of good
standing whom such counsel believes to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Company
and public officials.
C-3
<PAGE> 57
EXHIBIT D
FORM OF OPINION OF
COUNSEL TO [ADDRESSEE]
The opinion of counsel to [Addressee], to be delivered
pursuant to Section 5(c) or 6(b) of this Agreement, shall be to the effect set
forth below. All references to the "Registration Statement" shall be to the
Registration Statement as amended as of the date of such opinion and all
references to the "Prospectus" shall be to the Prospectus, as amended or
supplemented as of the date of such opinion.
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(ii) the terms and provisions of the Notes conform in all
material respects to the descriptions thereof contained in the Prospectus, and
the information in the Prospectus under the captions "Description of Debt
Securities" and "Description of Notes," to the extent that it constitutes
matters of law and legal conclusions and to the extent it summarizes the
documents referred to therein, has been reviewed by us and is correct in all
material respects;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust Indenture Act
of 1939, constitutes a valid and binding instrument enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, reorganization, insolvency, arrangement, fraudulent
conveyance, moratorium or other laws relating to or affecting the rights of
creditors generally and by the application of equitable principles;
(v) the Notes have been duly and validly authorized by
all necessary corporate action for issuance and sale pursuant to this
Agreement, except for the determination of the interest rate or formula,
redemption date(s) and price(s), repayment date(s) and price(s), currency,
denominations, interest payment dates, maturity and other terms to be set forth
on the face of each Note, and, when such determination has been made and the
Notes have been completed, executed and authenticated as specified in the
Indenture and delivered pursuant to the provisions of this Agreement, the Notes
will be valid and binding obligations of the Company, enforceable in accordance
with their terms (subject as aforesaid), and will be entitled to the benefits
provided by the Indenture; and
D-1
<PAGE> 58
(vi) the Registration Statement (it being understood that
they are not requested to and will not give any opinion or make any comment
with respect to the financial statements, schedules and other financial and
statistical information contained therein or the Form T-1) as of its effective
date complied as to form in all material respects with the 1933 Act.
They have participated in conferences with representatives of
the Company, its counsel and its accountants and with representatives of
[Addressee] and the Other Agents concerning the Registration Statement and the
Prospectus and have considered the matters required to be stated therein and
the statements contained therein, although they have not independently verified
the accuracy, completeness or fairness of such statements (except as described
in paragraph (ii) above). Although they did not participate in the preparation
of any of the documents incorporated by reference in the Registration
Statement, they reviewed such documents and met in conferences with
representatives of [Addressee] and the Other Agents and representatives of the
Company during which portions of such documents and related matters were
discussed. Based upon and subject to the foregoing, nothing has come to their
attention to cause them to believe (A) that the Registration Statement
(including the documents incorporated therein by reference), at the time it
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or (B) that the Prospectus (including the
documents incorporated therein by reference) at its issue date or as of the
date hereof contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. It is understood that they are not requested to and
will not make any comment with respect to the accuracy, completeness or
fairness of the financial statements, schedules and other financial information
contained or incorporated by reference therein or with respect to the Form T-1.
In addition, such opinion shall also cover, if applicable to a
particular issue of Notes, matters relating to listing of the Notes on the New
York Stock Exchange, the nonapplicability of the California usury law and such
other matters as [Addressee] may reasonably require.
Insofar as such opinion is affected by the laws of any
jurisdiction other than the State of California or the United States, they may
rely with your consent on the opinion of counsel to the Company being delivered
to [Addressee] pursuant to this Agreement or the opinion of other counsel
relied upon by counsel to the Company in rendering such counsel's opinion.
D-2
<PAGE> 59
EXHIBIT E
FORM OF LETTER OF
INDEPENDENT ACCOUNTANTS TO THE COMPANY
The letter of the independent accountants to the Company to be
delivered pursuant to Section 4(n), 5(e) or 6(b) of this Agreement shall
confirm that they are independent accountants within the meaning of the 1933
Act and the 1934 Act and the respective published rules and regulations
thereunder and shall be to the effect set forth below. All references to the
"Registration Statement" shall be to the Registration Statement as amended as
of the date of such letter and all references to the "Prospectus" shall be to
the Prospectus, as amended or supplemented as of the date of such letter.
(i) in their opinion the consolidated financial
statements and schedules audited by them and included or incorporated by
reference in the Registration Statement and the Prospectus comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act and the 1934 Act and the related published rules and regulations
thereunder;
(ii) on the basis of a reading of the unaudited
consolidated financial statements, if any, included or incorporated by
reference in the Registration Statement and the Prospectus or used as a basis
for the summary consolidated financial data included in the Prospectus and of
the latest unaudited financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders and directors of the Company; and inquiries of certain officials
of the Company who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events subsequent to
the date of the most recent audited balance sheet of the Company and its
consolidated subsidiaries, nothing came to their attention which caused them to
believe that:
(1) the unaudited consolidated financial statements
included in the Company's quarterly reports on Form 10-Q
incorporated by reference in the Prospectus, if any, do not
comply in form in all material respects with the applicable
accounting requirements of the 1934 Act and the published
rules and regulations thereunder or are not presented in
conformity with generally accepted accounting principles
applied on a basis substantially consistent
E-1
<PAGE> 60
with that of the audited consolidated financial statements
incorporated by reference in the Prospectus; or
(2) the amounts in the unaudited summary financial
information, if any, included in the Registration Statement
and the Prospectus do not agree with the corresponding amounts
in the financial statements from which such amounts were
derived or were not determined on a basis substantially
consistent with that of the audited consolidated financial
statements included or incorporated by reference in the
Registration Statement and Prospectus; or
(3) as of a specified date not more than five days
prior to the date of such letter, there was any decrease in
consolidated stockholder's equity or any increase in
consolidated long-term debt of the Company as compared with
the corresponding amounts shown on the latest balance sheet of
the Company and its consolidated subsidiaries included or
incorporated by reference in the Prospectus; or for the period
from the date of the latest financial statements included or
incorporated by reference in the Prospectus to a specified
date not more than five days prior to the date of such letter,
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated total revenues
or consolidated net income of the Company and its consolidated
subsidiaries, except in all instances for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not
deemed necessary by the Underwriters; or
(4) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general accounting
records of the Company and its subsidiaries) set forth or incorporated by
reference in the Registration Statement and the Prospectus agrees
E-2
<PAGE> 61
with the accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
E-3
<PAGE> 1
USL CAPITAL CORPORATION
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
TRUSTEE
INDENTURE
DATED AS OF NOVEMBER 15, 1994
<PAGE> 2
USL CAPITAL CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF NOVEMBER 15, 1994
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
<S> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)(3), 703(b)
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a)(7)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(f),502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(f),513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(f)
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CEDEL; CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Equivalent Principal Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Junior Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 10
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . 11
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Repayment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 13
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
3
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C> <C>
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Superior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . 14
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . 15
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . 16
Section 106. Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . . . . . 17
Section 107. Language of Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 17
Section 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . 17
Section 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE TWO
Security Forms
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . 19
Section 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . 20
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . 22
Section 304. Temporary Securities; Exchange of Temporary Securities . . . . . . . . . . . . . . 24
Section 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . 29
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . 30
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 502. Acceleration of Maturity, Rescission and Annulment . . . . . . . . . . . . . . . . 33
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
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TABLE OF CONTENTS
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<S> <C> <C> <C>
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . 37
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 39
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . 42
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . 46
Section 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . 48
Section 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . 54
Section 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . 54
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 803. Securities to be Secured in Certain Events . . . . . . . . . . . . . . . . . . . . 58
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . 59
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 60
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 61
</TABLE>
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ARTICLE TEN
Covenants
<S> <C> <C> <C>
Section 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . 61
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1005. Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1006. Payment of Taxes and Assessments; Maintenance
of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1007. Limitations on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1008. Provisions Relating to Subordinated Indebtedness . . . . . . . . . . . . . . . . . 66
Section 1009. Waiver of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1010. Purchase of Securities by Company or Subsidiary . . . . . . . . . . . . . . . . . 67
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 67
Section 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . 67
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . 68
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . 70
Section 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . 70
ARTICLE THIRTEEN
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . 70
Section 1302. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1303. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . 71
Section 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1306. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . 73
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 73
Section 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . 74
Section 1405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions . . . . . . . . . . . . . . . 75
</TABLE>
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ARTICLE FIFTEEN
Repayment at the Option of Securityholders
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Section 1501. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1502. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1503. Exercise of Option; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1504. Securities Payable on the Repayment Date . . . . . . . . . . . . . . . . . . . . 76
ARTICLE SIXTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1601. Exemption from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . 77
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed
to be a part of the Indenture.
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INDENTURE, dated as of November 15, 1994 between USL Capital
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
733 Front Street, San Francisco, California 94111, and The Chase Manhattan Bank
(National Association), a national banking association having its principal
corporate trust office at 4 Chase MetroTech Center, Brooklyn, New York 11245
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or by Commission rule or regulation under the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person, means
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<PAGE> 9
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless
the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means the board of directors of the
Company, the executive committee or any other committee of such board duly
authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in the city in that Place of Payment
are authorized or obligated by law or executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, Chief Executive Officer, the Chief Financial Officer, an Executive
Vice President or the Treasurer, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee in Brooklyn, New York at which at any particular time its
corporate trust business shall be principally administered, which office at the
date of original execution of this Indenture, is located at 4 Chase MetroTech
Center, Brooklyn, New York 11245.
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<PAGE> 10
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Equivalent Principal Terms" has the meaning specified in
Section 1102.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Holder", when used with respect to any Security, means in the
case of a Registered Security the Person is whose name the Security is
registered in the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"Indebtedness" of any Person shall mean all obligations
thereof for (i) money borrowed, which obligations are incurred, assumed or
guaranteed by such Person and (ii) the present value of all payments due under
any lease or under any other arrangement for retention of title if such lease
or other arrangement is a financing lease in accordance with generally accepted
accounting principles, which, in the case of (i) or (ii) above, in accordance
with generally accepted accounting principles, would be classified as
liabilities in the accounts of such Person or for which, in accordance with
such principles, a reserve would be set up in such accounts. The amount of any
Indebtedness shall equal the aggregate amount of such liabilities and reserves
as reflected on such Person's balance sheet at the date of any determination.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Junior Subordinated Indebtedness" shall mean all Indebtedness
of the Company for borrowed money (including financing leases), whether now
outstanding or hereafter incurred, which is subordinate and junior to (a) all
Superior Indebtedness and (b) all Senior Subordinated Indebtedness, and which
is not subordinated to any other Indebtedness.
"Lien" shall mean any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner of the
Property, whether such interest is based on the common law, statute or
contract, and including but not limited to a security interest, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. For the purposes of this Indenture, the Company shall
be deemed to be the owner of any Property which it has acquired or holds
subject to a conditional sale agreement, financing lease or other arrangement
pursuant to which title
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<PAGE> 11
to the Property has been retained by or vested in some other person for
security purposes.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, exercise of
option for repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chief Executive Officer, any Executive Vice President, or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee. Wherever this Indenture
requires that an Officers' Certificate be signed also by an engineer or an
accountant or other expert, such engineer, accountant or other expert (except
as otherwise expressly provided in this Indenture) may be in the employ of the
Company, and shall be acceptable to the Trustee. Each such Officers'
Certificate shall contain the statements set forth in Section 102 except
Officers' Certificates provided pursuant to Section 704(4).
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be counsel for
the Company, and shall be satisfactory to the Trustee. Each such Opinion of
Counsel shall contain the statements set forth in Section 102.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust (except pursuant to
Article Fourteen) 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 thereto appertaining; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in a foreign currency or a composite currency shall be the U.S.
dollar equivalent, determined on the date of original issuance of such Security
by the Company in good faith, of the principal amount of such
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<PAGE> 12
Security (or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (i) above), of such Security,
and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which a
Responsible Officer in the Corporate Trust Office of the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of and any premium, interest or additional amounts on any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on the Securities
of that series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security 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, as the case may be.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security established pursuant
to Section 201 which is registered in the Security Register, including, without
limitation, unless the context otherwise indicates, a Security in global form.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date", when used with respect to any Security to be
repaid upon exercise of option for repayment by 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 upon exercise of option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
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chairman or any vice-chairman of the executive committee of the board of
directors, the president, any vice president (whether or not designated by a
number or a word or words added before or after the title "vice president"),
the secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any corporate trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" has the meaning specified in Section 305.
"Security Registrar" means the Person appointed by the Company
to register Registered Securities and transfers of Registered Securities as
provided in Section 305. Initially, the Trustee is the Security Registrar for
the Securities.
"Senior Subordinated Indebtedness" shall mean all Indebtedness
of the Company for borrowed money (including finance leases), whether now
outstanding or hereafter incurred, which is subordinate and junior to Superior
Indebtedness, and which is not subordinated to any other Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered 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 due and payable.
"Subsidiary" means a corporation, partnership, trust, or
unincorporated organization
(i) organized under the laws of the United States, Puerto
Rico or Canada or a jurisdiction thereof;
(ii) which conducts substantially all of its business and has
substantially all of its Property within the United States, Puerto
Rico and Canada; and
(iii) at least a majority (by number of votes) of the Voting
Stock and a majority of each other class of stock and equity
securities of which are legally and beneficially owned by the Company
and/or a corporation, partnership, trust or unincorporated
organization meeting requirements (i) and (ii), above, all of the
equity securities of which (except director's qualifying shares) the
Company owns directly or through another similar wholly-owned
Subsidiary.
"Superior Indebtedness" shall mean all Indebtedness of the
Company, whether now outstanding or hereafter incurred, which is neither Senior
Subordinated Indebtedness nor Junior Subordinated Indebtedness.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean 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.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a nonresident alien
individual or a nonresident alien fiduciary of a foreign estate or trust.
"United States Person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States and an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source.
"U.S. Government Obligations" means securities which are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. 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 U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means outstanding shares of capital stock
having ordinary voting power for the election of directors, other than stock
(or such equivalent) having such power only by reason of the happening of a
contingency.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 704(4)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders 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 Thirteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 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 1306.
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(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.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date 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, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any
other manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) The Company may set a record date for purposes of determining the
identity of Holders of Securities of any series entitled to vote or consent to
any action by vote or consent authorized or permitted by Section 512 or Section
513. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Securities furnished to the Trustee pursuant to Section 701 prior to such
solicitation.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Institutional Trust, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument,
to the attention of its Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
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Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first- class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published on a Business Day in an Authorized
Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities, at least twice, each such
publication to be not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of 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 to
Holders of Registered Securities 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 any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
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 given as provided herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
Section 107. Language of Notices, Etc.
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.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c), such imposed duties shall
control.
Section 109. 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.
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Section 110. 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 111. Separability Clause.
In case any provision in this Indenture or the Securities or
coupons 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 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders of Securities and coupons, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the laws of the State of
California.
Section 114. Legal Holidays.
Except as specified pursuant to Section 301, in any case where
any Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity
of any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal and any premium need not be made at such Place
of Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date or Repayment Date, or at the Stated Maturity,
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date or
Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall be in such
form (including temporary or permanent global form) as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If temporary Securities of any series are issued
in global form as permitted by Section 304, the form thereof shall be
established as provided in the preceding sentence. If the forms of Securities
or coupons of any series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities (or any such
temporary global Security) or coupons.
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Unless otherwise specified as contemplated by Section 301,
Bearer Securities other than Bearer Securities in temporary or permanent global
form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Trustee
By
Authorized Signatory
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Section 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (10) 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 from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
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 therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Security in global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or Section 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global 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 last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Holder thereof.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, unless otherwise specified as contemplated
by Section 301, the Company, the Trustee and any agent of the Company and the
Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global
Security which is produced to the Trustee by such Holder.
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other
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Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1503 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities
of the series are to be issuable with or without coupons or both,
whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to
be issuable in permanent global form and the circumstances under which
such Securities may be issued, delivered or exchanged, if other than
in the manner provided in this Article Three, and the name of any
Common Depositary, or depositary, as the case may be, for such global
Security;
(4)(i) the manner in which or the Person to whom any interest
on any 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 interest, (ii) the manner in which, or
the Person to whom, any interest on any Bearer Security of the series
shall be payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and (iii)
the extent to which, or the manner in which, any interest payable on a
global Security will be paid in any case if other than in the manner
provided in this Article Three or Section 1002;
(5) the date or dates on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the formula pursuant to which such
rate or rates shall be determined, the date or dates from which any
such interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any
interest payable on any Registered Securities on any Interest Payment
Date;
(7) the place or places where, subject to the provisions of
Sections 1002 and 114, 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, Securities of the series may be surrendered for exchange,
notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and where
notice to Holders pursuant to Section 106 will be published;
(8) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and/or repaid in whole or in part, at the option of the
Holders;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) the denominations in which any Registered Securities of
the series shall be issuable, if other than the denominations provided
in Section 302 and the denomination or denominations in which any
Bearer Securities of the series shall be issuable, if other than the
denominations provided in Section 302;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on the Securities of the series shall be payable if other
than the currency of the United States of America and the agency or
organization responsible
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for overseeing such composite currency and other terms and conditions
with respect thereto;
(12) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment
of the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) if the amount of payments of principal of and any
premium or interest on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(14) if other than the principal amount thereof, the portion
of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(15) if either or both of Section 1402 or 1403 shall not
apply to the Securities of the series;
(16) the Person who shall be the Security Registrar, if other
than the Trustee, the Person who shall be the initial Paying Agent and
the Person who shall be the initial Common Depositary or the
depositary, as the case may be, and any provisions for the appointment
of a successor Common Depositary or depositary; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series, and the coupons appertaining
to any 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 in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, any Registered Securities of a series
shall be issuable in denominations of $1,000 and any integral multiple thereof
and any Bearer Securities of a series shall be issuable in the denomination of
$5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, Chief Executive Officer, Chief Financial Officer,
any Executive Vice President or Treasurer, under its corporate seal reproduced
thereon attested by its Secretary or an Assistant Secretary. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Treasurer or any Assistant Treasurer
of the Company.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall
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bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
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;
provided, however, that, to the extent authorized in or pursuant to a Board
Resolution and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, such Company Order may be electronically
transmitted, and provide instructions as to registered holders, principal
amounts, interest rates, maturity dates and other matters; provided, further,
that in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and
provided, further, that, a Bearer Security other than a temporary global Bearer
Security may be delivered in connection with its original issuance only if the
Company or its agent shall have received the certification required pursuant to
Section 304 relating to the exchange of the temporary global Security for
definitive Bearer Securities, unless the certification shall have been provided
earlier pursuant to Section 304 relating to the payment of interest, and only
if the Company has no reason to know that the certification is false. Except
as permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled.
If the forms or terms of the Securities of the series and any
related coupons have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating the first
Securities of such series, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating:
(a) if the forms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section
201, that such forms have been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, 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, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles.
If such forms or terms have been so established, 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 Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order 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
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are delivered at or prior to the authentication upon original issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been duly
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.
Section 304. Temporary Securities; Exchange of Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities. In the case of any series issuable as Bearer Securities, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), 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 maintained pursuant to Section
1002 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured coupons appertaining thereto) the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
aggregate principal amount of definitive Securities of the same series and of
like tenor of authorized denominations; provided, however, that no definitive
Bearer Security 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 Section 303.
Unless otherwise specified as contemplated by Section 301, if
temporary Securities of any series are issued in global form, any such
temporary global Security shall be delivered to the office of a depositary or
common depositary chosen by Euroclear and CEDEL (the "Common Depositary"), for
the benefit of Euroclear and CEDEL for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
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Trustee Securities, in aggregate principal amount equal to the principal amount
of such temporary global Security, executed by the Company. On or after the
Exchange Date such temporary global Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for Securities, without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such temporary global Security, an equal aggregate principal amount
of Securities of the same series of authorized denominations and of like tenor
as the portion of such temporary global Security to be exchanged. The
Securities to be delivered in exchange for any such temporary global Security
shall be definitive Bearer Securities, definitive Registered Securities or all
or a portion of a permanent global Security or any combination thereof, as
specified as contemplated by Section 301, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, in the case of the exchange of the temporary global Security for
definitive Bearer Securities (including a permanent global Bearer Security),
upon such presentation by the Common Depositary, such temporary global Security
shall be accompanied by a certificate dated the Exchange Date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date and
signed by CEDEL as to the portion of such temporary global Security held for
its account then to be exchanged, each in the form set forth in Exhibit A.3 to
this Indenture, unless the certificate(s) shall have been provided earlier
pursuant to this Section 304 relating to the payment of interest, and provided,
further, that definitive Bearer Securities (including a permanent global
Security) shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303.
The interest of a beneficial owner of Securities of a series
in a temporary global Security shall be exchanged for definitive Securities or
an interest in a permanent global Security of the same series and of like tenor
on or after the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and in the
case of the exchange of the temporary global Security for definitive Bearer
Securities (including a permanent global Security), unless the certificate(s)
shall have been provided earlier pursuant to this Section 304 relating to the
payment of interest, the account holder shall deliver to Euroclear or CEDEL, as
the case may be, a certificate in the form set forth in Exhibit A.1 and, if
applicable, Exhibit A.2 to this Indenture, dated no earlier than 15 days prior
to the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, interest payable on a
temporary global Security shall be payable to Euroclear and CEDEL on such
Interest Payment Date only if there has been delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A.3 to this Indenture dated no earlier than the first Interest Payment Date,
for credit without further interest on or after such Interest Payment Date to
the respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate in the form
set forth in Exhibit A.1 and, if applicable, Exhibit A.2 to this Indenture
dated no earlier than the first Interest Payment Date.
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Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to
be maintained by the Company in accordance with Section 1002 a register (being
the combined register of the Security Registrar and all transfer agents
designated pursuant to Section 1002 for the purpose of registration of transfer
of Securities and 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 Registered
Securities and the registration of transfers of Registered Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 1002 for such purpose in a Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series of
any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at any such office or
agency and upon payment if the Company shall so require of the charges
hereinafter provided. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. Bearer
Securities may not be issued in exchange for Registered Securities.
At the option of the Holder, Registered Securities of any
series may be issued in exchange for Bearer Securities of the same series of
any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, 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 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
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 located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and 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 the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
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exchangeable only as provided in this paragraph. In the case of permanent
global Bearer Securities and in the case of permanent global Registered
Securities if the beneficial owners of interests in a permanent global
Registered Security are entitled to exchange such interests for Securities of
such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in aggregate principal amount equal to the principal
amount of such permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered by the depositary 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
permanent global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged which in the case
of a permanent global Bearer Security, 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, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of that series to be redeemed and
ending on the relevant Redemption Date; and provided, further, that no
definitive Bearer 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 permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
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 shall (if so required by the Company
or the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar or any transfer agent duly executed, by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and ending at the close of business on the day for such
mailing and (B) if Securities of the series are issuable as either Bearer
Securities or Registered Securities, the earlier of the day of the first
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publication of the relevant notice of redemption or the mailing of the relevant
notice of redemption and ending at the close of business on such earlier day,
or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part, or (iii) to exchange any Bearer Security
so selected for redemption except that such a Bearer Security may be exchanged
for a Registered Security or coupon, as the case may be, of the same series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice of the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such 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.
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 principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States and unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
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 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, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Security and coupons, if
any, shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and of like
tenor and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
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Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. At the option of the Company, payment
of interest on any Registered Security may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account designated by such person.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Registered Securities of such series at the address of
such Holder as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered 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 and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a 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 Registered Security for the purpose of
receiving payment of principal of and any premium and (subject to Sections 305
and 307) any interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and 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 such Security or coupon 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.
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 Security issued in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, repayment, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee. All Securities and coupons so
delivered shall be promptly cancelled by the Trustee. The Company need not
specify the sinking fund payment against which such Securities or coupons are
to be credited except as required by Section 1203. 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 Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities and coupons held by the Trustee shall be destroyed and the
Trustee shall furnish to the Company a certificate with respect to such
destruction.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for, and any right to
receive additional amounts, as provided in Section 1004), and the Trustee, at
the
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expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
and all coupons, if any, appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, and (iv) Securities and
coupons for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company, in the case
of (i), (ii) or (iii) above, has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities and
coupons not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only (i) if requested to do so
with respect to the Securities of all series as to which it is Trustee and (ii)
if the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to the Holders of any Securities of any series which
are repayable by the Company at the option of such Holders in accordance with
Article Fifteen, the obligations of the Trustee to any Authenticating Agent
under Section 614 and, if money shall have been deposited with the Trustee
pursuant to Clause (1)(B) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
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Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
and any premium and interest for whose payment such money has been deposited
with the Trustee; but such money 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):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of, or any
premium on, any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 30 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) if an event of default, as defined in any mortgage,
indenture or instrument under which there may be issued or by which
there may be secured or evidenced, any Indebtedness of the Company
(including a default under this Indenture with respect to Securities
of any series other than such series) whether such Indebtedness now
exists or shall hereafter be created, shall happen and shall be
continuing and such event of default shall constitute the failure to
pay at maturity or such Indebtedness should either have become due and
payable by its terms or shall have been declared due and payable prior
to the date on which it would otherwise become due and payable, and
such acceleration shall not be rescinded or annulled, or such
Indebtedness shall not have been discharged, within a period of 10
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of such series a written notice specifying such event of
default and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such Indebtedness to be discharged
and stating that such notice is a "Notice of Default" hereunder;
provided, however, that, subject to the provisions of Sections 601 and
602, in the absence of actual knowledge of a
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Responsible Officer of the Trustee, as such officer, assigned to its
Corporate Trust Services Division, the Trustee shall not be charged
with knowledge of any such event of default unless written notice
thereof shall have been given to the Trustee by the Company, by the
trustee then acting under any mortgage, indenture or other instrument
(including any other trustee acting under this Indenture for any
other series of Securities) under which such event of default shall
have occurred, by the holder or an agent of any holder of such
Indebtedness, or by the Holders of at least 25% in principal amount
of the Outstanding Securities of such series; or
(6) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar
law, or the consent by it to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or other similar official) of the Company or of any
substantial part of its property, the making by it of any assignment
for the benefit of creditors, or the failure of the Company generally
to pay its debts as such debts become due, or the taking of corporate
action by the Company in furtherance of any such actions.
Section 502. Acceleration of Maturity, Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of and all accrued but unpaid interest on all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) and interest
shall become immediately due and payable. Upon payment of such amount, all
obligations of the Company in respect of payment of the principal of and
interest on the Securities of that series, shall terminate.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of and any premium on any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security or any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of, or
any premium on, any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal and any premium and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and 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 coupons, 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 related coupons 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 proceedings or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law,
relative to the Company or any other obligor upon the Securities of any series
or any related coupons or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in respect of
the Securities of such series and any related coupons and to file such
other papers or documents as may be necessary, or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities and
coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, custodian, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or 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 reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
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
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities or coupons, or
both, as the case may be, in respect of which money has been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and
coupons 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 and interest, respectively; and
Third: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
In any case where Securities are Outstanding which are
denominated in more than one currency, or in a composite currency and at least
one other currency, and the Trustee is directed to make ratable payments under
this Section to Holders of such Securities, the Trustee shall calculate the
amount
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of such payments as follows: (i) as of the day the Trustee collects an
amount under this Article, the Trustee shall, as to each Holder of a Security
to whom an amount is due and payable under this Section which is denominated in
a foreign currency or a composite currency, determine that amount of U.S.
Dollars that would be obtained for the amount owing such Holder, using
the rate of exchange at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York U.S. Dollars with such amount
owing; (ii) calculate the sum of all U.S. Dollar amounts determined under (i)
and add thereto any amounts due and payable in U.S. Dollars; and (iii) using
the individual amounts determined in (i) or any individual amounts due and
payable in U.S. Dollars, as the case may be, as a numerator and the sum
calculated in (ii) as a denominator, calculate as to each Holder of a Security
to whom an amount is owed under this Section the fraction of the amount
collected under this Article payable to such Holder. Any expenses incurred by
the Trustee in actually converting amounts owing Holders of Securities
denominated in a currency or composite currency other than that in which any
amount is collected under this Article shall be likewise (in accordance with
this paragraph) borne ratably by all Holders of Securities to whom amounts are
payable under this Section.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of, or any premium or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day
preceding that on which final judgment is given. The Company shall not be
liable for any shortfall nor shall it benefit from any windfall in payments to
Holders of Securities under this Section caused by a change in exchange rates
between the time the amount of a judgment against it is calculated as above and
the time the Trustee converts the Judgment Currency into the Required Currency
to make payments under this Section to Holders of Securities, but payment of
such judgment shall discharge all amounts owed by the Company on the claim or
claims underlying such judgment.
Section 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 30-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
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provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Sections 305 and 307) any interest on such Security or payment of
such coupon on the respective Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) 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 of a Security or coupon 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 of Securities and coupons 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.
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 of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders of Securities or
coupons may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in
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good faith shall, by a Responsible Officer or Responsible Officers
of the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders of Securities of such series not
joining in any such direction, and
(3) 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 related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences,
except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series or coupon affected.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
waive any default hereunder, or to retract any such waiver previously given,
whether or not such Holders remain Holders after such record date; provided
that such waiver shall be given no later than the 90th day after such record
date.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
of any Security or coupon for the enforcement of the payment of the principal
of or any premium or interest on any Security or the payment of any coupon on
or after the respective Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date, as the case may be).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
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suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series has occurred and is continuing, the Trustee shall exercise, with respect
to the Securities of such series or any coupons, as the case may be, such of
the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable 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;
and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it with respect to Securities
of any series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding
Securities of such 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.
(d) 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.
(e) 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.
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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 Section 703(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of or any
premium or interest on any Security of such series or any related coupons or in
the payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
or as otherwise expressly provided herein and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons 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;
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(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; and
(h) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
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 the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and 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 agent.
Section 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither, the Trustee nor the Paying Agent shall be under any 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
(1) 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);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (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
(3) to indemnify the 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.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds
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held in trust for the benefit of the Holders of particular Securities. If the
Trustee incurs fees and expenses after an Event of Default as set forth in
Sections 501(6) or 501(7), such fees and expenses are intended to constitute
expenses of administration under any bankruptcy law.
Section 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series then,
within 90 days after ascertaining that it has such conflicting interest, and if
the Event of Default, but exclusive of any period of grace or requirement of
notice, to which such conflicting interest relates has not been cured or duly
waived or otherwise eliminated before the end of such 90-day period, the
Trustee shall either eliminate such conflicting interest or, except as
otherwise provided below in this Section, resign with respect to the Securities
of that series in the manner and with the effect hereinafter specified in this
Article and the Company shall take prompt steps to have a successor appointed
in the manner provided herein.
(b)(1) If the Trustee shall fail to comply with the provisions of
Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 90-day period,
transmit, in the manner and to the extent provided in Section 703(c), to all
Holders of Securities of that series notice of such failure.
(2) Subject to the provisions of Section 514, unless the Trustee's
duty to resign is stayed as provided in Subsection (f) of this Section, any
Holder who has been a bona fide Holder of Securities of any series referred to
in Subsection (a) of this Section 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 such Trustee, and the appointment of a
successor, if such Trustee fails, after written request thereof by such Holder
to comply with the provisions of Subsection (a) of this Section.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series, if an
Event of Default, but exclusive of any period of grace or any requirement of
notice, has occurred with respect to the Securities of that series and
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Securities of any series other than that series or
is trustee under another indenture under which any other securities,
or certificates of interest or participation in any other securities,
of the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture, provided that there shall be
excluded from the operation of this paragraph (A) this Indenture with
respect to the Securities of any series other than that series and (B)
any other indenture or indentures hereafter qualified under the Trust
Indenture Act under which other securities, or certificates of
interest or participation in other securities, of the Company are
outstanding and
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally unless the Commission
shall have found and declared by order pursuant to Section
305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture
with respect to Securities of that series and one or more
other series or the provisions of such other indenture or
indentures which are so likely to involve a material conflict
of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the
Securities of that series and such other series or under such
other indenture or indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after
opportunity
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for hearing thereon, that trusteeship under this Indenture
with respect to the Securities of that series and such other
series or such other indenture or indentures is not so likely
to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Securities of that series
and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Company, or of an underwriter (other than the Trustee itself)
for the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or an
executive officer, or both, of the Company but may not be at the same
time an executive officer of both the Trustee and the Company; (ii) if
and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director or an
executive officer, or both, of the Trustee and a director of the
Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent
or depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this Subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting securities
is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is
also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company;
(9) the Trustee owns, on the date the Event of Default, but
exclusive of any period of grace or requirement of notice, has
occurred upon the Securities of any series or any anniversary of such
default while such default upon such Securities remains outstanding,
in the
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capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, of in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this Subsection. As to
any such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after the dates of any such default upon
the Securities of any series and annually in each succeeding year that
such default upon such Securities continues, the Trustee shall make a
check of its holdings of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in
full of the principal of or any premium or interest on any of the
Securities or coupons when and as the same becomes due and payable,
and such failure continues for 30 days thereafter, the Trustee shall
make a prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this Subsection; or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 613(b), the Trustee shall be or
shall become a creditor of the Company.
For purposes of paragraph (1) of this Subsection, and of
Sections 512 and 513, the term "series" means a series, class or group of
securities issuable under an indenture or this Indenture pursuant to whose
terms holders of one such series may vote to direct the trustee, or otherwise
take action pursuant to a vote of such holders, separately from holders of
another such series; provided, that "series" shall not include any series of
securities issuable under an indenture (including any series of Securities
issuable under this Indenture) if all such series rank equally and are wholly
unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the Trustee shall
not be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the
Company, means every person who, within one year prior to the time as
of
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which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation
or any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means any obligor upon the Securities
of any series or any related coupons.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount," when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
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(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes and
provided, further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(f) Except in the case of a default in the payment of the principal
of or interest on any Securities of any series, or in the payment of any
sinking or purchase fund installment, the Trustee shall not be required to
resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon, that (i) the Event of Default, but exclusive of any period of
grace or requirement of notice, may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interests of
Holders of such Securities. The filing of such an application shall
automatically stay the performance of the duty to resign until the Commission
orders otherwise.
(g) If Section 310(b) of the Trust Indenture Act is amended at any
time after the date of this Indenture to change the circumstances under which a
Trustee shall be deemed to have a conflicting interest with respect to the
Securities of any series or to change any of the definitions in connection
therewith, this Section 608 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting as Trustee
hereunder with respect to any Outstanding Securities to be deemed to have a
conflicting interest, in which case such changes shall be incorporated herein
only to the extent that such changes (i) would not cause the Trustee to be
deemed to have a conflicting interest or (ii) are required by law.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $5,000,000 and subject to supervision or examination by
Federal or State authority; provided, however, that if Section 310(a) of the
Trust Indenture Act or the rules and regulations of the Commission under the
Trust Indenture Act at any time permit a corporation organized and doing
business under the laws of any other jurisdiction to serve as trustee of an
indenture qualified under the Trust Indenture Act, this Section 609 shall be
automatically amended to permit a corporation organized and doing business
under the laws of any such other jurisdiction to serve as Trustee hereunder,
provided that such corporation shall have a combined capital and surplus of at
least $5,000,000. If such corporation publishes reports of condition at least
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annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. Neither the Company nor any person directly or indirectly
controlling, controlled by or under common control with the Company may serve
as Trustee. 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 shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) with
respect to the Securities of any series after written request therefor
by the Company or by any Holder of a Security of such series who has
been a bona fide Holder of a Security of such series for at least six
months, unless the Trustee's duty to resign has been stayed as
provided in Section 608(f), or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Securities or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect
of the Trustee in an involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal
or State bankruptcy, insolvency or similar law, or a decree or order
by a court having jurisdiction in the premises shall have been entered
for the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or other similar official of the Trustee or its
property or affairs, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law, or
shall consent to the appointment of or taking possession by a
receiver, custodian, liquidator, assignee, trustee, sequestrator or
other similar official of the Trustee or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
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Holder of a Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated
(including those who have been Holders for less than six months), petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by Section 611, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
(including those who have been Holders for less than six months) 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
in the manner provided in Section 106. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all series of Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its liens, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
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retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
as 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 paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in Subsection
(c) of this Section, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and coupons and the holders of other indenture securities, as
defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this Subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a voluntary or involuntary case had been commenced in
respect of the Company under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law upon the date of such
default; and
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(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three-month period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default, as defined in Subsection (c) of this Section,
would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any preexisting claim of the Trustee as such creditor, such claim
shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders of Securities and the holders of
other indenture securities in such manner that the Trustee, the Holders of
Securities and the holders of other indenture securities realize, as a result
of payments from such special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, the same percentage of their respective claims, figured
before crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the Holders of
Securities and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any
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claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or State bankruptcy, insolvency or other similar
law, whether such distribution is made in cash, securities or other property,
but shall not include any such distribution with respect to the secured
portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders of Securities and
the holders of other indenture securities, in accordance with the provisions of
this paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part,
to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to the Trustee and the Holders of
Securities and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this Subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such
three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
of Securities at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
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(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payments in
full of the principal of or interest on any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term "Company" means any obligor upon the Securities.
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 or upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and if the Trustee is required to appoint
one or more Authenticating Agents with respect to any series of Securities, to
authenticate Securities of such series upon original issuance and to take such
other actions as are specified in Sections 303, 304 and 309, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, or in
the case of any Authenticating Agent with respect to Securities issuable as
Bearer Securities, under the laws of any country in which such Bearer
Securities may be offered, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $1,000,000 and
subject to supervision or examination by Federal or State authority or
authority of such country. 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
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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 such 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 such Authenticating
Agent; provided, however, that the Trustee shall upon such merger, conversion
or consolidation notify Holders of Bearer Securities thereof as provided in
Section 106.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall provide notice to the
Holders of the series as to which the Authenticating Agent will serve as
provided in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
As Trustee
By
As Authenticating Agent
By
Authorized Signatory
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If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
Upon the written request of the Trustee, the Company will
furnish or cause to be furnished to the Trustee
(a) semiannually, not later than each June 30 and December 31
in each year, a list, in such form as the Trustee may reasonably
require, containing all the information in the possession or control
of the Company, or any of its Paying Agents other than the Trustee, as
to the names and addresses of the Holders of Securities of such series
as of a date not more than 15 days prior to the time such list is
furnished, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
excluding from any such list, if the Company so desires, names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 701, (ii)
received by the Trustee in its capacity as Paying Agent or Security Registrar
and (iii) filed with it within the two preceding years pursuant to Section
703(c)(2). The Trustee may (i) destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished, (ii) destroy any
information received by it as Paying Agent or Security Registrar hereunder upon
delivering to itself as Trustee, not earlier than June 30 or December 31, names
and addresses of the Holders of Securities obtained from such information since
the delivery of the next previous list, if any, (iii) destroy any list
delivered to itself as Trustee which was compiled from information received by
it as Paying Agent or Security Registrar hereunder upon the receipt of a new
list so delivered, and (iv) destroy not earlier than two years after filing,
any information filed with it pursuant to Section 703(c)(2).
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case each such applicant must
hold Securities of such series) or with all Holders of Securities with respect
to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit to such other Holders, then the Trustee shall, within five
business days after the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
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(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), and as
to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series or of all
Securities, as the case may be, whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities of such series or of all Securities, as
the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities 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 the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 702(b), regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
1992, the Trustee shall transmit by mail to the Holders of Securities of any
series with respect to which it acts as Trustee, as provided in Subsection (c)
of this Section, a brief report dated as of such May 15 with respect to any of
the following events which may have occurred within the previous twelve months
(but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 608(c);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of such series
or any related coupons, on any property or funds held or collected by
it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
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(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other
obligor on the Securities of such series) to the Trustee in its
individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor,
except an indebtedness based upon a creditor relationship arising in
any manner described in Section 613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has
not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602;
provided, however, that if the Trust Indenture Act is amended subsequent to the
date hereof to eliminate the requirement of the Trustee's brief report, the
report required by this Section need not be transmitted to any Holders.
(b) The Trustee shall transmit to all Holders of Securities of any
series for which it acts as the Trustee, as provided in Subsection (c) of this
Section, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to Subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series for which it acts as the
Trustee, on property or funds held or collected by it as Trustee and which it
has not previously reported pursuant to this Subsection, except that the
Trustee for each series shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Securities of such series Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the
two years preceding such transmission, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b)
of this Section, to each Holder of a Security whose name and address
is preserved at the time by the Trustee, as provided in Section
702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which any Securities of such series are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
series of Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be
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required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is
not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit, within 30 days after the filing thereof with
the Trustee, to the Holders of Securities, in the manner and to the
extent provided in Section 703(c) with respect to reports pursuant to
Section 703(a), such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this paragraph, such
compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and
existing under the laws of the United States of America or any State
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest (including all
additional amounts, if any, payable pursuant to Section 1004) on all
the Securities and the performance and observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been complied
with.
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Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance or transfer of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities and coupons.
Section 803. Securities to be Secured in Certain Events.
If any merger or consolidation of the Company with or into any
corporation or any conveyance or transfer to any Person by the Company of its
properties and assets substantially as an entirety in accordance with Section
8.01 hereof would subject any of the property or assets of the Company owned
immediately prior thereto to any Lien, the Company, by indenture supplemental
hereto, will, prior to such consolidation, merger, conveyance or transfer,
secure the due and punctual payment of the principal of and interest, if any,
on the Securities (equally and ratably with any other Debt of the Company then
entitled to be so secured) by a direct lien in favor of the Trustee for the
benefit of the Holders of the Securities on all such property or assets of the
Company equal to and ratable with all liens other than any theretofore existing
thereon.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons,
the Company, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series of
Securities, stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment
of principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange 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 related coupons in any
material respect; or
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(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination (a) shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision or (b) shall not
apply to any Security Outstanding; or
(6) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301;
or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(8) to evidence any changes to Section 608, 609 or 703(a)
permitted by the terms thereof; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with any provision of this Indenture, provided that such
action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect the interest of Holders of the Securities of any
series or any appurtenant coupons in any material respect.
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 a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series 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,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change any obligation
of the Company to pay additional amounts pursuant to Section 1004
(except as contemplated by Section 801(1) and permitted by Section
901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or change
the coin or currency in which any Security or any premium or any
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, or on or after
the Redemption Date or Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided
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for in this Indenture, or reduce the requirements of Section 1304 for
quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 1002, or
(4) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1009, or the deletion
of this proviso, in accordance with the requirements of Sections
611(b) and 901(7), or
(5) adversely affect the right to repayment, if any, of the
Securities of any series at the option of the Holders 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 one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture or to revoke any such
consent previously given, whether or not such Holders remain Holders after such
record date; provided that such consent shall be given no later than the 90th
day after such record date.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 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 and, if applicable, that
the Securities affected by such supplemental indenture, 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, as to enforcement of remedies to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors rights
generally and the application of usual equitable principles when equitable
remedies are sought. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
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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.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of and
any premium and interest on the Securities of that series in accordance with
the terms of the Securities, 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 Bearer Securities on
or before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
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 such series
an office or agency where Securities of that series may be presented or
surrendered for payments, 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 will maintain (A) in the Borough of Brooklyn, The City of New York,
an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons
may be presented or surrendered for payment in the circumstances described in
the following paragraph (and not otherwise), (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series, which is
located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 1004); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States, an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be
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surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and the Holders of
such series of the location, and any change in the location, of any such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to
furnish the Trustee with the address thereof, such presentations, and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, no payment of principal, premium or
interest on Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any additional amounts payable on
Securities of such series pursuant to Section 1004) shall be made at the office
of the Company's Paying Agent in the Borough of Manhattan, The City of New
York, if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions on the full payment or receipt of such
principal, premium, interest or additional amounts, as the case may be, in
Dollars. Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, at the option of the Holder of any Bearer Security
or related coupon, payment may be made by check presented or mailed to an
address outside the United States or by transfer to an account maintained by
the payee with a bank located outside the United States.
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 accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee and the Holders of such series of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of and any premium or interest on any of the Securities of
that series and any related coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on each due date of the principal of and any
premium or interest on any Securities of that series and any related coupons,
deposit with a Paying Agent a sum sufficient to pay the principal and any
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal
of and any premium or interest on Securities of that series and any
related coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series or any related
coupons) in the making of any payment of principal of and any premium
or interest on the Securities of that series or any related coupons;
and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and any
premium or interest on any Security of any series or any related coupon and
remaining unclaimed for two years after such principal and any premium or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in each Place of Payment, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Additional Amounts.
If the Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Security of such
series or any coupon appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of,
any Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts
provided for in this Section to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
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Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
Section 1005. Officers' Certificate.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement signed by the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the Controller or
an Assistant Controller of the Company, stating, as to each signer thereof,
that
(1) a review of the activities of the Company during such
year and of performance under this Indenture has been made under his
supervision and
(2) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or upon notice or lapse of time
or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him
and the nature and status thereof.
The Company will deliver a written notice to the Trustee promptly
after any officer of the Company has knowledge of the occurrence of any event
which with the giving of notice or the lapse of time or both would become an
Event of Default under Clause (5) or (6) of Section 501.
Section 1006. Payment of Taxes and Assessments; Maintenance of Properties.
(a) The Company will, and will cause each Subsidiary to, pay all
taxes, assessments and governmental charges lawfully levied or assessed upon
it, its Property, or any part thereof, or upon its income or profits, or any
part thereof, before the same shall become delinquent, and will duly observe
and conform to all lawful requirements of any governmental authority relative
to any of its Property, and all covenants, terms and conditions upon or under
which any of its Property is held; and within four months after the accruing of
any lawful claims or demands for labor, materials or supplies or other objects
which might become a lien or charge upon any Property of the Company or any
Subsidiary or the income therefrom, it will pay or cause to be discharged or
make adequate provision to satisfy and discharge the same; provided that
nothing in this Section 1006 or elsewhere in this Indenture shall require the
Company or any Subsidiary to observe or conform to any requirement of
governmental authority or to cause to be paid or discharged, or to make
provision for, any such claim, demand, lien or charge or to pay any such tax,
assessment or governmental charge so long as the validity thereof shall be
contested in good faith; and provided, further, that nothing in this Section
1006 or elsewhere in this Indenture shall require the Company or any Subsidiary
to cause to be paid or discharged, or make provision for, any tax, assessment
or governmental charge with respect to Property subject to leases in connection
with which the lessees of such Property have undertaken obligations with
respect to payment of such tax, assessment or governmental charge.
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(b) The Company will, and will cause each Subsidiary to, keep and
maintain all buildings, plants and other Property owned by it in such good
condition, repair and working order and supplied with all such necessary
equipment as in the judgment of the Company may be necessary, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 1006
or, elsewhere in this Indenture or in the Securities, shall obligate the
Company or a Subsidiary with respect to Property subject to leases pursuant to
the terms of which the lessees thereof have undertaken such obligations, or
shall prevent the Company or a Subsidiary from selling, abandoning or otherwise
disposing of any Property, tangible or intangible, whenever in the judgment of
the Board of Directors of the Company or such Subsidiary it is advisable or
desirable to do so.
SECTION 1007. Limitation on Liens.
(a) The Company will not create or permit to continue in existence
any Lien upon any of the Property of the Company whether owned at the date
hereof or hereafter acquired, to secure Indebtedness of the Company other than:
(1) Liens securing taxes, assessments or governmental
charges or levies or the claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like persons;
(2) Liens incurred or deposits made in the ordinary
course of business (i) in connection with worker's compensation,
unemployment insurance, social security and other like laws, or (ii)
to secure the performance of letters of credit, bids, tenders, sales
contracts, leases, statutory obligations, surety, appeal and
performance bonds and other similar obligations not incurred in
connection with the borrowing of money, the obtaining of advances or
the payment of the deferred purchase price of Property;
(3) attachments, judgments and other similar liens
arising in connection with court proceedings, provided that the
execution or other enforcement of such liens is effectively stayed and
the claims secured thereby are being actively contested in good faith;
(4) any purchase money mortgage or other Lien on
Property acquired or constructed by the Company, or any mortgage or
other Lien created on such Property within 90 days after its
acquisition or construction, which secures Indebtedness representing
all or a portion of the purchase price or construction costs thereof;
(5) any lease of Property in which the Company is the
lessee, other than a lease that is a part of a sale and leaseback
transaction not entered into in the ordinary course of business;
(6) Liens on Property subject to lease by the Company to
others (including Liens on the rights of the Company under such lease)
securing Indebtedness in respect of which the holder of the
Indebtedness has no recourse against the Company except recourse to
such Property or to the proceeds from any sale or lease of such
Property;
(7) Liens on any Property existing at the time of
acquisition of such Property (including acquisition through merger or
consolidation);
(8) Liens on Property or shares of stock of a corporation
at the time the corporation becomes a Subsidiary or merges into or
consolidates with the Company or a Subsidiary;
(9) Liens securing indebtedness of a Subsidiary owing to
the Company or another Subsidiary;
(10) Liens on Property which has been transferred by the
Company in a transaction which has been accounted for as a sale under
generally accepted accounting principles;
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(11) exclusive of any other Lien permitted in subsections
(1) through (10) of this Section 1007(a), other Liens on Property of
the Company, provided that the outstanding aggregate principal amount
of the Indebtedness of the Company secured by all such other Liens
shall not at any time exceed an amount equal to 5% of the total assets
of the Company after deducting its intangible assets, all determined
on a consolidated basis in accordance with generally accepted
accounting principles, consistently applied; and
(12) an extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien or Liens referred to in subsections (1) through (10) of this
Section 1007(a); provided, however, that such extension, renewal or
replacement Lien shall be limited to all or a part of the same
Property that secured the Lien or Liens extended, renewed or replaced
(plus improvements on such Property).
(b) In case any Property is subjected to a Lien in violation of
this Section 1007, the Company will make or cause to be made effective
provision whereby the Securities will be secured equally and ratably with all
other obligations secured thereby, and in any case the Securities shall have
the benefit, to the full extent that, and with such priority as, the Holders
may be entitled thereto under applicable law, of an equitable Lien on such
Property so equally and ratably securing the Securities.
(c) If at any time the Company shall create or assume any
mortgage, pledge, lien or other encumbrance not permitted by paragraph (a) of
this Section 1007, to which the covenant in paragraph (b) of this Section 1007
is applicable, the Company will promptly deliver to the Trustee
(i) an Officers' Certificate stating that the covenant of
the Company contained in paragraph (b) of this Section 1007 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such
covenant has been complied with, and that any instruments executed by
the Company in the performance of such covenant comply with the
requirements of such covenant.
(d) In the event that the Company shall hereafter secure the
Securities equally and ratably with any other obligation or indebtedness
pursuant to the provisions of this Section 1007, the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the Holders of the Securities so secured, equally and
ratably with such other obligation or indebtedness.
SECTION 1008. Provisions Relating to Subordinated Indebtedness.
The Company covenants that it will not directly or indirectly
amend or waive any provision of or permit the amendment or waiver of any
provision relating to the subordination to Superior Indebtedness of any Senior
Subordinated Indebtedness or any Junior Subordinated Indebtedness or of the
instruments under which any such Indebtedness is now outstanding or may
hereafter be issued.
Section 1009. Waiver of Covenants.
The Company may omit in any particular instance to comply with
the covenant set forth in Sections 1007 and 1008 hereof with respect to the
Securities of any series, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Securities of such
series at the time Outstanding shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant,
but no such waiver shall extend to or affect such covenant except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant shall remain in full force and effect.
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Section 1010. Purchase of Securities by Company or Subsidiary.
If and so long as the Securities of a series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In the case of any redemption at the election
of the Company of less than all the Securities of any series with the same (i)
Stated Maturity, (ii) period or periods within which, price or prices at which
and terms and conditions upon which such Securities may or shall be redeemed or
purchased, in whole or in part, at the option of the Company or pursuant to any
sinking fund or analogous provision or repayable at the option of the Holder
and (iii) rate or rates at which the Securities bear interest, if any, or
formula pursuant to which such rate or rates accrue (collectively, the
"Equivalent Principal Terms"), the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series and with such Equivalent
Principal Terms to be redeemed. In the case of any redemption of Securities
(i) prior to the expiration of any restriction on such redemption provided in
the terms of such Securities with Equivalent Principal Terms or elsewhere in
this Indenture, or (ii) pursuant to an election of the Company which is subject
to a condition specified in the terms of such Securities with Equivalent
Principal Terms, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities with Equivalent Principal
Terms of any series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities with Equivalent Principal Terms
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 Registered Securities with Equivalent Principal Terms of such series
of a denomination larger than the minimum authorized denomination for
Securities with Equivalent Principal Terms of that series. If so specified in
the Securities with Equivalent Principal Terms of a series, partial redemptions
must be in an amount not less than $1,000,000 principal amount of Securities.
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
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relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date. With respect to Registered
Securities, at least two business days before the mailing of notices to the
Holders of the Securities, the Trustee shall also give notice of redemption by
(i) registered or certified mail, postage prepaid, (ii) confirmed facsimile
transmission or (iii) overnight delivery service to all registered securities
depositories then in the business of holding substantial amounts of obligations
of types comprising the Securities to be redeemed (such depositories now being
Depository Trust Company of New York, New York; Midwest Securities Trust
Company of Chicago, Illinois; Pacific Securities Depository Trust Company of
San Francisco, California; and Philadelphia Depository Trust Company of
Philadelphia, Pennsylvania) and to one or more national information services
that disseminate notices of redemption of obligations such as the Securities to
be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities with
Equivalent Principal Terms of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities, 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,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) the CUSIP number of the Securities, if any.
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 in which
event the Company shall provide the Trustee with the information required by
Clauses(1) through (7) above.
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 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
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date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice, together
with all coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
1002) and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest, and provided, further,
that, unless otherwise specified as contemplated by Section 301, installments
of interest on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant 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 an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
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.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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
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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.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case under Clause
(1) or (2) above in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 1202, the principal amount of
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $50,000, the Trustee need not call Securities for redemption,
except upon Company Request, and such cash payment shall be applied to the next
succeeding sinking fund payment, provided, however, that the Trustee shall at
the request of the Company from time to time pay over and deliver to the
Company any cash payment so being held by the Trustee upon delivery by the
Company to the Trustee of Securities purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for Securities of any series or such shorter period as shall be satisfactory to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and 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. If such Officers Certificate
shall specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Corporation shall thereupon be obligated to
pay the amount therein specified. The Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all 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 action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
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Section 1302. 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 1301, to be held
at such time and at such place in Chicago, the Borough of Manhattan, the City
of New York or in London 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, 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
1301, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days after receipt of such
request 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 Chicago, the Borough of Manhattan, the City of New York or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in Subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding Securities
of such series by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders of Securities of
any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to vote at any meeting
of Holders of Securities of any series for any purpose specified in Section
1301. 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 vote at
such meeting, whether or not such Holders remain Holders after such record
date; provided that any such meeting shall be held no later than the 90th day
after such record date.
Section 1304. 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 or the Securities of any series expressly provides may be given by
the Holders of not less than 66-2/3% in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote 66-2/3% in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of 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
1302(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
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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 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
or the Securities of any series expressly provides may be given by the Holders
of not less than 66-2/3% 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 66-2/3% in principal amount of the Outstanding Securities of that
series; and provided, further, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of 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 a series and the related
coupons, whether or not present or represented at the meeting.
Section 1305. 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 a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 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 1302(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall 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 and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from
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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 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate 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 such 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 such notice was given as provided in Section 1302 and, if
applicable, Section 1304. 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 FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
Unless the Company elects, pursuant to Section 301, not to
permit the application of either or both of (a) defeasance of the Securities of
a series under Section 1402 or (b) covenant defeasance of the Securities of a
series under Section 1403, then the provision of such Section or Sections, as
the case may be, together with the other provisions of this Article Fourteen,
shall be applicable to the Securities of such series, and the Company may at
its option by Board Resolution, at any time, with respect to the Securities of
such series, elect to have either Section 1402 (if applicable) or Section 1403
(if applicable) be applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article Fourteen.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of its option to effect a
defeasance of the Securities of a series pursuant to this Section, the Company
shall be deemed to have been discharged from its obligations with respect to
the Outstanding Securities of such series on the date the conditions set forth
below 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 the Outstanding Securities of such
series and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of Outstanding
Securities of such series to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts,
duties, and immunities of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may exercise its
option under this Section 1402 notwithstanding the
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prior exercise of its option under Section 1403 with respect to the Securities
of such series.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of its option to effect a covenant
defeasance of the Securities of a series pursuant to this Section, the Company
shall be released from its obligations under Sections 1006, 1007 and 1008, with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, 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, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities shall be unaffected
thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to the Outstanding Securities of a series:
(1) 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 applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of and any premium and each installment of principal of and
any premium and interest on the Outstanding Securities of such series
on the Stated Maturity of such principal or installment of principal
or interest (including any additional amounts that may be required
pursuant to Section 1004); (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and
(iii) any amounts that may be payable at the option of the Holder on
any Repayment Date;
(2) Such defeasance or covenant defeasance shall not cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 608 and for purposes of the Trust
Indenture Act with respect to any securities of the Company;
(3) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound;
(4) Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be de-listed;
(5) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this
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Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred
and (ii) in the case of Bearer Securities, there will be no adverse
federal tax consequences to the Holders of such Bearer Securities as a
result of such defeasance;
(6) 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 (i) the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred and (ii) in the case of Bearer Securities, there will
be no adverse federal tax consequences to the Holders of such Bearer
Securities as a result of such covenant defeasance;
(7) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 301;
(8) The Company shall have delivered to the trustee an
Officers' Certificate and an Opinion of Counsel, each 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; and
(9) In the case of an election under Section 1402, no Event
of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such
deposit or 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).
Section 1405. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (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 the Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1404 which, in the opinion of a nationally recognized
firm of
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independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
ARTICLE FIFTEEN
Repayment at the Option of Securityholders
Section 1501. 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 their terms and (except as otherwise contemplated by Section 301 for
Securities of such series) in accordance with this Article.
Section 1502. Repayment of Securities.
Each Security which is subject to repayment in whole or in
part at the option of the Holder thereof on a Repayment Date shall be repaid at
the applicable Repayment Price together with interest accrued to such Repayment
Date as specified pursuant to Section 301.
Section 1503. Exercise of Option; Notice.
Each Holder desiring to exercise his option for repayment
shall, as conditions to such repayment, surrender the Security to be repaid
together with all coupons, if any, appertaining thereto maturing after the
Repayment Date and with written notice of the exercise of such option at any
office or agency of the Company in a Place of Payment, not less than 30 nor
more than 45 days prior to the Repayment Date. Such notice, which shall be
irrevocable, shall identify the Security to be repaid and shall, in the case of
a Registered Security, specify the principal amount of such Security to be
repaid, which shall be not less than the minimum authorized denomination for
such Security or an integral multiple thereof and, in the case of a partial
repayment of the Registered Security the denomination or denominations of the
Security or Securities with Equivalent Principal Terms to be issued to the
Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
Any Registered Security which is to be repaid only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
with Equivalent Principal Terms 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.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the repayment of Securities
shall relate, in the case of any Security repaid or to be repaid only in part,
to the portion of the principal of such Security which has been or is to be
repaid.
Section 1504. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been
given and the Securities so to be repaid having been surrendered as aforesaid,
such Securities shall, on the Repayment Date, become due and payable at the
Repayment Price therein specified and from and after such date (unless the
Company shall default in the payment of the Repayment Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Security so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with Section 1503 together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, such Security
76
<PAGE> 77
shall be paid by the Company at the Repayment Price, together with accrued
interest to the Repayment Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest, and provided, further, that, unless
otherwise specified as contemplated by Section 301, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Repayment
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the Repayment Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security duly surrendered for repayment shall not be so
paid on the Repayment Date, the principal and any premium shall, until paid,
bear interest from the Repayment Date at the rate prescribed therefor in the
Security.
ARTICLE SIXTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1601. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor Person, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors, as such, of the Company or of any successor Person, or
any of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or inferred therefrom; and that any
and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of such Securities.
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.
77
<PAGE> 78
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.
USL CAPITAL CORPORATION
By: /s/ G.F. Stallos
---------------------------------
Executive Vice President and
Chief Financial Officer
By: /s/ J.H. Hause
---------------------------------
Vice President and Treasurer
Attest: /s/ Nancy E. Fraser
-----------------------------
Assistant Secretary
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
not in its individual capacity
but solely as Trustee
By: /s/ Valerie Dunbar
---------------------------------
Vice President
Attest: /s/ Cathleen N. Sokolowski
-----------------------------
Vice President
78
<PAGE> 79
STATE OF CALIFORNIA }
} ss.
COUNTY OF SAN FRANCISCO }
On the 23rd day of November, 1994 before me, Susan Williamson, a
Notary Public in and for said County and State, personally appeared G. F.
Stallos, known to me to be the Executive Vice President and Chief Financial
Officer of USL Capital Corporation, one of the corporations described in and
which executed the foregoing instrument, and known to me to be the person who
executed the within instrument on behalf of USL Capital Corporation; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; and that he acknowledged to me that USL Capital
Corporation executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
Witness my hand and official seal.
/s/ Susan Williamson
-----------------------------------
Notary Public in and for said
County and State
STATE OF CALIFORNIA }
} ss.
COUNTY OF SAN FRANCISCO }
On the 23rd day of November, 1994, before me, Susan
Williamson, a Notary Public in and for said County and State, personally
appeared J. H. Hause, known to me to be the Vice President and Treasurer
of USL Capital Corporation, one of the corporations described in and which
executed the foregoing instrument, and known to me to be the person who
executed the within instrument on behalf of USL Capital Corporation; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; and that he acknowledged to me that USL Capital
Corporation executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
Witness my hand and official seal.
/s/ Susan Williamson
-----------------------------------
Notary Public in and for said
County and State
79
<PAGE> 80
STATE OF NEW YORK }
} ss.
COUNTY OF NEW YORK }
On the 28th day of November, 1994, before me, Della K.
Benjamin, a Notary Public in and for said County and State, personally appeared
Valerie Dunbar, known to me to be the Second Vice President of The Chase
Manhattan Bank (National Association), one of the corporations described in and
which executed the foregoing instrument, and known to me to be the person who
executed the within instrument on behalf of The Chase Manhattan Bank (National
Association); that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; and that he acknowledged to me that
The Chase Manhattan Bank (National Association) executed the within instrument
pursuant to its bylaws or a resolution of its board of directors.
Witness my hand and official seal.
/s/ Della K. Benjamin
-------------------------------------
Notary Public in and for said
County and State
80
<PAGE> 81
EXHIBIT A
[Forms of Certification]
Exhibit A.1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
USL CAPITAL CORPORATION
[Insert title or sufficient description of
Securities to be delivered]
Reference is hereby made to the Indenture dated as of November
15, 1994 (the "Indenture") between USL Capital Corporation and The Chase
Manhattan Bank (National Association), as trustee (the "Trustee") covering the
above-captioned Securities. This is to certify that as of the date hereof,
______________ principal amount of Securities credited to you for our account
(i) is owned by persons that are not United States Persons, as defined below;
(ii) is owned by United States Persons that are (a) foreign branches of United
States financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the Notes through
foreign branches of United States financial institutions and who hold the Notes
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution encloses
herewith a certificate in the form of Exhibit A. 2 to the Indenture); or (iii)
is owned by United States or foreign financial institutions for purposes of
resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i) (D) (7)), which United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) certify that they have not acquired the Notes for purposes
of resale directly or indirectly to a United States Person or to a person
within the United States or its possessions.
[Insert if certificate does not relate to an interest
payment--We undertake to advise you by tested telex followed by written
confirmation if the above statement as to beneficial ownership is not correct
on the date of delivery of the above- captioned Securities in bearer form as to
all of such Securities with respect to such of said Securities as then appear
in your books as being held for our account.] We understand that this
certificate is required in connection with United States tax laws. We
irrevocably authorize you to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings with respect to the
matters covered by this certificate. "United States Person" shall mean a
citizen or resident of the United States of America (including the District of
Columbia), a corporation, partnership or other entity created or organized in
or under the laws of the United States or any political subdivision thereof or
an estate or trust that is subject to United States federal income taxation
regardless of the source of its income.
81
<PAGE> 82
[This certificate excepts and does not relate to ____________
principal amount of Securities credited to you for our account and to which we
are not now able to make the certification set forth above. We understand that
definitive Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Securities.]*
Dated:
--------------------------
[To be dated on or after
- --------------------------------
(the date determined as provided
in the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
---------------------------------
(Authorized Signatory)
Name:
---------------------------
Title:
--------------------------
________________________
*Delete if inappropriate
82
<PAGE> 83
EXHIBIT A.2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
USL CAPITAL CORPORATION
[Insert title or sufficient description
of Securities to be delivered]
Reference is hereby made to the Indenture dated as of November
15, 1994 (the "Indenture"), between USL Capital Corporation and The Chase
Manhattan Bank (National Association), as trustee, relating to the offering of
the above-captioned Securities (the "Securities"). Unless herein defined, terms
used herein have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or
the issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:
--------------------------
[To be dated on or after
- --------------------------------
(the date determined as provided
in the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
---------------------------------
(Authorized Signatory)
Name:
---------------------------
Title:
--------------------------
83
<PAGE> 84
EXHIBIT A.3
[Form of Certificate to be Given by Euroclear
and Cedel S.A. in Connection with the Exchange
of All or a Portion of a Temporary Global
Security or to Obtain Interest Prior to Exchange]
Certificate
USL CAPITAL CORPORATION
[Insert title or sufficient description of
Securities to be delivered]
We refer to that portion, , of the Global Security
-------------
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Securities]* [for which we are seeking to obtain
payment of interest]* (the "Submitted Portion") . This is to certify, pursuant
to the Indenture dated as of November 15, 1994 (the "Indenture") between USL
Capital Corporation and The Chase Manhattan Bank (National Association), as
trustee (the "Trustee"), that we have received in writing, by tested telex or
by electronic transmission from member organizations with respect to each of
the persons appearing in our records as being entitled to a beneficial interest
in the Submitted Portion a Certificate of Beneficial Ownership by a Non- United
States Person or by Certain Other Persons [and, in some cases, a Certificate of
Status as a Foreign Branch of a United States Financial Institution,
authorizing us to inform the issuer or the issuer's agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986 and the regulations thereunder]* substantially in the form
of Exhibit A.l [and A.2]* to the Indenture.
We hereby request that you deliver to the office of
in definitive Bearer Securities in the
- ------------------- -----------------
denominations on the attached Schedule A.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
Dated:
-------------------
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, as Operator
of the Euroclear System] [CEDEL S.A.]
By
----------------------------------
_________________________
* Delete if inappropriate
84
<PAGE> 1
EXHIBIT 4.2
[If the Security is an Original Issue Discount Security,
insert--FOR PURPOSES OF SECTION 1232 of THE INTERNAL REVENUE CODE of
1986, THE ISSUE PRICE OF THIS SECURITY IS ____% OF ITS PRINCIPAL AMOUNT AT
STATED MATURITY SET FORTH BELOW AND THE ISSUE DATE IS __________, 19__]
[If the Security is a Global Security, insert--THIS SECURITY IS A
GLOBAL SECURITY AS HEREINAFTER DEFINED AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
HEREINAFTER DESCRIBED AND 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 A NOMINEE OF THE DEPOSITARY TO A SUCCESSOR OF THE
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
In addition, unless this Security is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the issuer or its agent for registration of transfer,
exchange or payment and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
REGISTERED REGISTERED
NUMBER: PRINCIPAL AMOUNT: $______________
CUSIP:
USL CAPITAL CORPORATION
___% SENIOR NOTE DUE [DATE]
USL Capital Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which terms includes any successor corporation under the below mentioned
Indenture), for value received, hereby promises to pay to [If the Security is
to be in registered form, insert-- Cede & Co., as nominee for DTC, or
registered assigns,] [If the Security is to be in bearer form, insert-- the
bearer hereof upon surrender], the principal sum of ________________________ on
[Date].
[If the Security is to bear interest at a fixed rate prior to
maturity, insert--, and to pay interest thereon from __________ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for semi-annually on ______________ and ______________ in each year
commencing ______________, at the rate of ____% per annum until the principal
hereof is paid or made available for payment.]
[If the Security is to bear interest at an adjustable rate
prior to Maturity, insert--, and to pay interest thereon from ______________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, at a rate per annum determined as provided below,
semi-annually on ______________ and ______________ in each year, commencing
__________, 19__, until the principal hereof is paid or made available for
payment.]
[Interest on the Securities is payable at the rate of __% per
annum from __________, 19__ through __________, 19__ and for each __-month
period from __________, 19__ through __________, 19__ at a rate per annum
(rounded to the nearest five hundredths of a percentage point) equal to ____%
of the __ Year Treasury Rate (as defined below) or the Alternate Treasury Rate
<PAGE> 2
(as defined on the reverse side hereof), as the case may be, or such higher
rate as may be established by the Company as set forth below.]
[The "____ Year Treasury Rate" applicable to any ____-month
period commencing _________, 19__, . . . or 19__ shall be the most recent
Weekly Treasury Rates for constant maturities of ____ years published during
the period of the ten calendar days ending on the __________ (or, if such
__________ is not a Business Day, the next preceding Business Day) next
preceding such __________. "Weekly Treasury Rates" means the weekly average
yield to maturity values adjusted to a constant maturity of a fixed number of
years as read from the yield curves of the most actively traded marketable U.S.
Treasury fixed interest rate securities constructed daily by the U.S. Treasury
Department as published by the Federal Reserve Board or any Federal Reserve
Bank or by any United States Department or agency. In __________, 19__, Weekly
Treasury Rates were published by the Federal Reserve Board weekly in
"Statistical Release H.15 (519), Selected Interest Rates" as "U.S. Government
securities -- Treasury constant maturities."]
[If the Trustee determines in good faith that for any reason
the Weekly Treasury Rates for constant maturities of __ years are not published
as provided above during the ten calendar day period specified above preceding
the __________ preceding the ____________ on which any such __-month period
commences, interest on the Securities for such __-month period will be based on
the Alternate Treasury Rate determined as of such __________ (or, if such
__________ is not a Business Day, the next preceding Business Day) in the
manner set forth on the reverse hereof. As promptly as practicable, the
Trustee shall calculate or cause to be calculated the __ year Treasury Rate or
the Alternate Treasury Rate applicable to each __-month period. The
determination of such Rate shall be confirmed in writing by independent
accountants of recognized standing selected by the Trustee and such Rate as so
confirmed shall be binding upon the Company and the Holders.]
[If the Trustee determines in good faith that for any reason
neither the ____ Year Treasury Rate nor the Alternate Treasury Rate can be
determined for any __-month period, then the rate of interest shall be
determined by the Company. In addition, the Company may elect a higher rate of
interest for the Securities than that calculated on the basis of the ____ Year
Treasury Rate or the Alternate Treasury Rate. The Company shall make such
interest rate determinations or elections by delivery to the Trustee of an
Officers' Certificate on or before the __________ preceding commencement of the
__-month period in which such interest rate will apply.]
[After the interest rate for any __-month period has been
determined, the Trustee will cause such rate to be published in an Authorized
Newspaper in ____________________ on or about each __________ prior to the
commencement of the __-month period to which it applies. The Company will
cause notice of such rate of interest to be enclosed with the interest payment
checks next mailed to the Registered Holders of the Securities after such rate
has been determined.]
[If the Security is to bear interest at a floating rate above
the secondary market rate for T-Bills or the auction rate for such Bills,
insert--, and to pay interest thereon, to the extent permitted by law, at the
rate of [____ basis points above] [(____)% of] the weighted average per annum
[discount Rate] [bond yield equivalent rate] for direct obligations of the
United States with a maturity of __________ computed on the basis of a [365 or
366-day year, as the case may be,] [360-day year] [and applied on a daily
basis] (the "____ Treasury Bill Rate") [based on results of the most recent
auction of] [set in the secondary market for] ____ [month] [day] U.S. Treasury
Bills as published by the Board of Governors of the Federal Reserve System or
(if not so published) as reported by the Department of the Treasury or any
Federal Reserve Bank or the United States Government department or agency.
[The interest rate will be adjusted on the calendar day following each auction
2
<PAGE> 3
of __________ [month] [day] U.S. Treasury Bills.] [The interest rate will be
adjusted on the calendar day following each auction of __________ [month] [day]
U.S. Treasury Bills.] [The interest rate in effect for the period from
__________ through the date of the first __________ auction after such date
shall be based upon the results of the most recent ____________ auction prior
to such date; and the interest rate in effect for the ____ days immediately
prior to Maturity shall be based upon the results of the most recent __________
auction held prior to the ____ days preceding Maturity.]
[If the Security is to bear interest at a floating rate,
insert--In the event that the [____-day [__________] Treasury Bill Rate ceases
to be published or reported as provided above, then the rate of interest in
effect at the time of the last such publication or report will remain in effect
until such time, if any, as such Treasury Bill Rate shall again be so published
or reported.]
[The interest rate applicable to each ____ will be determined
as promptly as practicable by the Company as described herein and the Company
will furnish the Trustee with an Officers' Certificate setting forth the
interest rate applicable to each __________ promptly after such rate has been
determined.]
[If the Security is to bear interest prior to Maturity,
insert-- The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security is registered at the close of business on
the ____ or ____ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.]
[If the Security is not to bear interest prior to Maturity,
insert-- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of ____% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for.]
Payment of the principal of (and premium, if any, on) and [any
such] interest on this Security will be made at the Corporate Trust Office of
the Trustee in the City of ______________, or at the office or agency of the
Company maintained for that purpose in the Borough of __________________, The
City of New York, in such coin or currency of [the United States of America] as
at the time of payment is legal tender for payment of public and private debts;
[provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the person entitled thereto as such
address shall appear in the Security Register.]
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH IN FULL BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF USL CAPITAL CORPORATION
AUTHENTICATION
This is one of the Securities of the
series designated herein referred to in By____________________
the within-mentioned Indenture. Title
_____________________________
as Trustee Attest and Countersign:
_________________________
Title
By______________________________
Authorized Signatory
4
<PAGE> 5
This Security is one of a duly authorized issue of debt
securities of the Company (herein called the "Securities") issued and to be
issued in one or more series under an Indenture, dated as of [Date] (the
"Indenture"), between the Company and __________________________, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $__________________.
[If the Security is to bear interest at an adjustable rate
prior to Maturity, insert--If the Trustee determines in good faith for any
reason that the Weekly Treasury Rates for ____ year constant maturities are not
published by the Federal Reserve Board or any Federal Reserve Bank or any
United States Government department or agency during the period of ten calendar
days ending on the __________ (or, if the __________ is not a Business Day, the
next preceding Business Day) next preceding the __________ on which a __-month
period for which the interest rate on the Securities is being fixed commences,
the Securities shall bear interest, at a rate per annum (rounded to the nearest
five hundredths of a percentage point) during such __-month period of ____% of
the Alternate Treasury Rate for such __-month period.]
[The "Alternate Treasury Rate" applicable to any __-month
period commencing __________, 19__, . . . and 19__ means the yields to maturity
of the daily closing bids (or less frequently if daily quotations shall not be
available), quoted by at least three recognized U.S. Government securities
dealers selected by the Trustee, during a period of seven calendar days, for
all marketable U.S. Treasury securities dealers selected by the Trustee, during
a period of seven calendar days, for all marketable U.S. Treasury securities
with a maturity date of at least __ months but not more than __ months from the
date of the determination (other than securities which can, at the option of
the holder, be surrendered at face value in payment of any federal estate tax).
The seven calendar day period shall be the seven calendar days ending on the
__________ (or, if the __________ is not a Business Day, the next preceding
Business Day) next preceding the __________ on which a __-month period for
which the interest rate on the Securities is being fixed commences. Maturity
means the date on which the security becomes due.]
[In determining that any Weekly Treasury Rates are not
published, the Trustee may rely conclusively on any written advice from the
United States Treasury to such effect.]
[If the Security is to be subject to redemption only at the
option of the Company or any sinking fund redemption will be at the same
prices, insert--The Securities of this series are subject to redemption upon
not less than 30 days' notice provided in the manner set forth in the
Indenture, [(1) on __________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Price equal to 100% of the principal amount, and (2)] at any
time [on or after __________, 19__], as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [on or before __________, ____%, and if
redeemed] during the 12-month period beginning __________ of the years
indicated,
5
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
</TABLE>
and thereafter at a Redemption Price equal to __% of the principal amount
together in the case of any such redemption [(whether through operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities of record at the close
of business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
[If the Security is to be subject to redemption at the option
of the Company and pursuant to a sinking fund at different prices, insert--The
Securities of this series are subject to redemption upon not less than 30 days'
notice by mail, (1) on __________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after __________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the
12-month period beginning __________ of the years indicated,
<TABLE>
<CAPTION>
<S> <C> <C>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities of record at the close
of business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
[If there is to be a sinking fund, insert--The sinking fund
for this series provides for the redemption on __________ each year beginning
with the year ____ and ending with the year ____ of [not less than] $__________
("mandatory sinking fund") and not more than $__________] aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking fund
payments may be credited against subsequent [mandatory] sinking fund payments
otherwise required to be made.]
[If the Security is to be redeemable in part, insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
6
<PAGE> 7
[If the Security is to bear interest at a floating rate,
insert--If on any date on which a [__-day] [__________] Treasury Bill Rate is
to be determined, such rate is for any reason not determinable as provided on
the face hereof, (a) the Company, at its option, may redeem the Security upon
not less than __ nor more than __ days' prior notice, as a whole [or from time
to time in part in increments of $__________,] at a redemption price equal to
[insert appropriate prices and table, if any], together in the case of any such
redemption with accrued interest to the Redemption Date (but interest
installments whose Stated Maturity is on the Redemption Date will be payable to
the Holder of such Security of record at the close of business on the relevant
record date referred to on the face hereof), all as provided in the Indenture,
such right of redemption to be exercisable until __________; (b) the Security
shall be subject to repayment in whole [or in parts in increments of
$__________] on any __________ or __________, at the option of the Holder
thereof, at a price equal to [insert appropriate repayment prices and table, if
any] (the "Repayment Price"), together with interest payable to the Repayment
Date (but interest installments whose Stated Maturity is on the Repayment Date
will be payable to the Holder of such Security of record at the close of
business on the relevant record date referred to on the face hereof), all as
provided in the Indenture, such option to be exercisable until __________; (c)
the rate of interest in effect at the time a [__-day] [__] Treasury Bill Rate
becomes indeterminable shall remain in effect until a new [__-day] [__________]
Treasury Bill Rate may be determined as provided on the face hereof, and (d)
the Company will promptly deliver an Officers' Certificate to the Trustee
certifying its inability to determine the [__-day] [__________] Treasury Bill
Rate and notify the Holders of such inability and of the redemption, repayment
and interest rate provisions set forth in (a), (b), and (c) above.]
[If the Security is to be subject to repayment at the option
of the Holder other than when a floating rate is not determinable, insert--This
Security is also subject to repayment in whole [or in part in increments of
$__________] on [__________, 19__, . . . or 19__,] [any __________ or
__________, commencing on __________,] at the option of the Holder hereof at a
price equal to [insert appropriate repayment prices and table, if any] (the
"Repayment Price"), together with interest payable to the Repayment Date (but
interest installments whose Stated Maturity is on the Repayment Date will be
payable to the Holder of such Security of record at the close of business on
the relevant record date referred to on the face hereof), all as provided in
the Indenture.]
[If the Security is to be subject to repayment at the option
of the Holder, insert--To be repaid at the option of the Holder, the Company
must receive this Security, with the form of "Option to Elect Repayment" hereon
duly completed, at an office or agency of the Company maintained for that
purpose in ____________________ (or at such other place of which the Company
shall from time to time notify the Holder of this Security) not less than __
nor more than __ days prior to the Repayment Date. The exercise of the
repayment option by the Holder shall be irrevocable.
[If the Security is not to be subject to redemption at the
option of the Company, insert--The Securities are not redeemable at the option
of the Company prior to Maturity.]
[If the Security is not to be an Original Issue Discount
Security, insert--If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is to be an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
7
<PAGE> 8
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series under the Indenture to be effected at any time by the Company with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
upon any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein and in the Indenture prescribed.
[If the Security is to be in registered form, insert--As
provided in the Indenture and subject to certain limitations set forth therein
and herein, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office of the Security Registrar for this series (initially,
_____________________________). Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Trustee, the Security Registrar or any transfer agent, duly executed by the
Holder hereof or its attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and for the same
aggregate principal amount, will be issued in the name or names of the
designated transferee or transferees.]
[The Securities of this series are issuable only in registered
form [without coupons] in denominations of $_____________ [and any integral
multiple] [or increments of $____________ in excess] thereof. As provided in
the Indenture and subject to certain limitations therein set forth, securities
of this series are exchangeable for a like aggregate principal amount of
Securities of this series of a different authorized denomination, as requested
by the Holder surrendering the same.]
[No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.]
[Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
8
<PAGE> 9
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.]
[If the Security is a Global Security, insert--"Global
Security" and "Global Securities" means a Security or Securities evidencing all
or a part of a series of Securities, issued to the Depositary (as hereinafter
defined) for such Series or its nominee, and registered in the name of such
Depositary or its nominee. "Depositary" means, with respect to the Securities
of any series issuable or issued in whole or in part in the form of one or more
Global Securities, the person designated as the Depositary by the Company.
No holder of any beneficial interest in this Security held on
its behalf by a Depositary or a nominee of such Depositary shall have any
rights under the Indenture with respect to such Global Security, and such
Depositary or nominee may be treated by the Company, the Trustee, and any agent
of the Company or the Trustee as the owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
impair, as between a Depositary and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary as Holder of any Security.
This Security is exchangeable, in whole but not in part, for
Securities registered in the names of Persons other than the Depositary or its
nominee or in the name of a successor to the Depositary or a nominee of such
successor depositary only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Security or if at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, in either case, a successor
depositary is not appointed by the Company within 90 days, (ii) the Company in
its discretion at any time determines not to have all of the Securities of this
series represented by one or more Global Security or Securities and notifies
the Trustee thereof, or (iii) an Event of Default has occurred and is
continuing with respect to the Securities of this series. If this Security is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
Securities issuable in authorized denominations and registered in such names as
the Depositary shall direct. Subject to the foregoing, this Security is not
exchangeable, except for a Security or Securities of the same aggregate
denominations to be registered in the name of the Depositary or its nominee or
in the name of a successor to the Depositary or a nominee of such successor
depositary.]
[If the Security is to be in bearer form, insert--The
Securities are issuable only as unregistered Securities payable to the bearer
thereof [without coupons] in denominations of $__________ [and any integral
multiple] [or increments of $__________ in excess] thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of new Securities of
authorized denominations, as requested by the Holder surrendering the same.
[No service charge will be made for any such exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.]
[This Security is transferable by delivery. The Company, the
Trustee and any agent of the Company or the Trustee may treat and consider the
bearer hereof as the absolute owner of this Security for the purpose of
receiving payment of the principal hereof and interest, if any, hereon and for
all other purposes, whether or not this Security be overdue, and neither the
Company nor the Trustee, nor any such agent shall be affected by notice to the
contrary.]
9
<PAGE> 10
[The Indenture entitles Holders to receive annual reports with
respect to the Trustee's eligibility and qualifications to serve as Trustee by
filing their names and addresses with the Trustee for that purpose within two
years preceding the mailing of any such annual report.]
No recourse shall be had for the payment of the principal of
(and premium, if any, on) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
Unless otherwise defined herein, all terms used in this
Security which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
This Security, including without limitation the obligation of
the Company contained herein to pay the principal of (and premium, if any, on)
and interest on this Security in accordance with the terms hereof and of the
Indenture, shall be construed in accordance with and governed by the laws of
the State of California.
10
<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - ______________ Custodian ______________ under Uniform Gifts
(Cust) (Minor)
to Minors Act __________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto ____________________ [PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE] ____________________________________________
____________________________________________________________________________
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF TRANSFEREE] the within Security,
and all rights thereunder, hereby irrevocably constituting and appointing
______________________________ Attorney to transfer said Security on the books
of the Company, with full power of substitution in the premises.
Dated:
-------------------------
- ----------------------------------------
NOTICE: The signature to this
assignment must be guaranteed by a
commercial bank or trust company
in the continental United States
or by a firm or corporation having
membership on any national
securities exchange or in the
National Association of Securities
Dealers, Inc., and must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement or any change
whatever.
11
<PAGE> 12
[Form of Option to Elect Repayment.]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Repayment Date, to the undersigned, at
_______________________________________________________________
_______________________________________________________________
(Please Print or Typewrite Name and Address of the Undersigned)
For this Security to be repaid, the Company must receive this
Security, with this "Option to Elect Repayment" form duly completed, at an
office or agency of the Company maintained for that purpose in
____________________, or at such other place of which the Company shall from
time to time notify the Holder, no less than __ days nor more than __ days
prior to [__________, 19__, . . . or 19__] [the __________ or __________
(commencing on __________)].
If less than the entire principal amount of the within
Security is to be repaid, specify the portion thereof (which shall be
$__________, or an integral multiple of $__________) which the Holder elects to
have repaid: $__________.
Dated: __________
_________________________________
Note: The signature must correspond
with the name as written upon the face
of the Security in every particular
without alteration or enlargement.
12
<PAGE> 1
EXHIBIT 4.3
IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS A GLOBAL SECURITY, IT IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER
DESCRIBED AND 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 A NOMINEE OF THE
DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
IN ADDITION, IF INDICATED ON THE FACE HEREOF THAT THIS NOTE IS A GLOBAL
SECURITY, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE DESIGNATED METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
REGISTERED REGISTERED
NUMBER: PRINCIPAL AMOUNT: $
CUSIP #: SPECIFIED CURRENCY:
USL CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES __
Floating Rate Note / / ___% Fixed Rate Note / /
Original Issue Date:
Interest Accrual Date: Maturity Date:
Issue Price:
Extended Notice of
Maturity Extension
Redemption Date(s): Redemption Price(s): Date(s): Date(s):
-------- ---------
Authorized Denominations (Only
applicable if Specified Currency
is other than U.S. Dollars):
Repayment Date(s): Repayment Price(s): Interest Payment Period:
Total Amount of OID: Interest Payment
Dates:
Yield to Maturity:
Initial Accrual Period OID:
<PAGE> 2
Method Used to Determine
Yield to Maturity and Initial
Accrual Period OID: Exchange Rate Agent:
Original Issue Discount Global Security:
Note:
/ / Yes / / No / / Yes / / No
(Only applicable if this is a Floating Rate Note):
Initial Interest Rate: Spread (plus or minus):
Spread Multiplier:
Maximum Interest Rate:
Index Maturity:
Minimum Interest Rate:
Base Rate:
If LIBOR:
/ / LIBOR Reuters
/ / LIBOR Telerate
Interest Reset Period:
Interest Reset Dates: Calculation Rate Agent:
Additional Terms:
REGISTERED OWNER:
USL Capital Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), for value received,
hereby promises to pay to the Registered Owner identified above, or registered
assigns, the "Principal Amount," as set forth above, on the Maturity Date (as
defined on the reverse hereof), and to pay interest thereon as described
herein.
The principal of (and premium, if any) and interest on this Note are
payable by the Company in such coin or currency specified above as at the time
of payment shall be legal tender for the payment of public and private debts
(the "Specified Currency"). If the Specified Currency is other than U.S.
Dollars, the Company will arrange to have all such payments converted into U.S.
Dollars in the manner and subject to the limitations described below.
Notwithstanding the foregoing, the Holder hereof may elect to receive all
payments in respect hereof in the Specified Currency by delivery of a written
request to the Trustee not later than fifteen calendar days prior to the
applicable payment date. Such election will remain in effect until revoked by
written notice to the Trustee received not later than fifteen calendar days
prior to the applicable payment date.
2
<PAGE> 3
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH IN FULL BELOW, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF USL CAPITAL CORPORATION
AUTHENTICATION
This is one of the Securities of the
series designated herein referred to in By
the within-mentioned Indenture. ------------------------------
Title
--------------------------------,
as Trustee
Attest and Countersign:
--------------------------------
By Title
------------------------------
Authorized Signatory
[Corporate Seal]
3
<PAGE> 4
1. This Note is one of a duly authorized issue of debt
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of _____________ (the
"Indenture"), between the Company and __________________________________, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all Indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is one
of a series designated as Medium-Term Notes, Series __ of the Company (herein
called the "Notes"). The Notes are limited (except as otherwise provided in
the Indenture) to the aggregate principal amount established from time to time
by the Board of Directors of the Company. The Notes may be issued at various
times with different maturity dates and different principal repayment
provisions, may bear interest at different rates, may be payable in different
currencies and may otherwise vary, all as provided in the Indenture.
The Maturity Date of this Note is as shown on the face
hereof; provided, that the Maturity Date may be extended, at the option of the
Holder, to the Extended Maturity Date or Dates, if any, shown on the face
hereof if the Holder so elects, in the manner specified herein, prior to the
applicable Notice of Extension Date shown on the face hereof. Such election
will be irrevocable and will be binding upon each subsequent Holder of this
Note. Notwithstanding the foregoing, the Extended Maturity Dates shall not be
any date that is more than fifteen years from the Original Issue Date set forth
on the face hereof. If no Extended Maturity Date or Dates are shown on the
face hereof, the Maturity Date of this Note is not subject to extension. As
used in this Note, the term "Maturity Date" means the Maturity Date shown on
the face hereof until such time, if any, as the Holder hereof has duly extended
the maturity of this Note, and thereafter shall mean such Extended Maturity
Date.
Any such election to extend the Maturity Date of this Note
will be effective only if notice thereof is provided to the Company in the
manner described below. The Maturity Date of this Note may be extended, at the
option of the Holder hereof, to each successive Extended Maturity Date shown on
the face hereof if the Holder presents a duly completed and executed notice, in
the form below entitled "Form of Option to Extend Maturity", together with this
Note, to the Corporate Trust Office of the Trustee in the City of
________________, or such other address as the Company shall from time to time
notify the Holders of Notes, prior to but not more than ten Business Days prior
to the applicable Notice of Extension Date shown on the face hereof, provided,
however, that if a Holder of this Note does not make an election with respect
to a specified Extended Maturity Date, this Note may not be extended with
respect to a subsequent Extended Maturity Date. The Trustee will provide the
Holder with a new Note indicating the new Maturity Date. Unless otherwise
stated on the face hereof, any option by the Holder to extend the Maturity Date
of this Note must be exercised with respect to the entire principal amount
hereof. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any option to extend the Maturity Date of this Note
will be determined by the Company, whose determination will, to the extent
permitted by law, be final and binding.
2. A. Unless otherwise specified on the face hereof, the
Regular Record Date with respect to any Interest Payment Date (as defined
below) shall be the date 15 calendar days immediately preceding such Interest
Payment Date, whether or not such date shall be a Business Day (as defined
below). Interest which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
this Note is registered at the close of business on the Regular Record Date
next preceding such Interest Payment Date; provided, however, that interest
payable on the Interest Payment Date occurring on the Maturity Date or earlier
Redemption Date or Repayment Date will be to the Person to whom principal shall
be payable; provided, further, that the first payment of interest on any Note
originally issued between a Regular Record Date and an Interest Payment Date or
on an Interest Payment Date will be made on the Interest Payment
4
<PAGE> 5
Date following the next succeeding Regular Record Date to the registered owner
on such next succeeding Regular Record Date. Notwithstanding the foregoing,
any interest which is payable but not punctually paid or duly provided for on
any Interest Payment Date shall forthwith cease to be payable to the registered
holder thereof on such Regular Record Date, and may be paid to the Person in
whose name such Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof having been given to the Holder of such Note not less than 10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner, all as more fully provided in the Indenture. Unless otherwise
specified on the face hereof, "Business Day" means any day, other than a
Saturday or Sunday, that meets each of the following applicable requirements:
the day is (a) not a day on which banking institutions are authorized or
required by law or regulation to be closed in The City of New York, (b) if this
Note is denominated in a Specified Currency other than U.S. Dollars, (i) not a
day on which banking institutions are authorized or required by law or
regulation to close in the financial center of the country issuing the
Specified Currency (which in the case of ECU shall be London and Luxembourg)
and (ii) a day on which banking institutions in such financial center are
carrying out transactions in such Specified Currency, and (c) with respect to
LIBOR Notes, a London Banking Day. Unless otherwise specified on the face
hereof, "London Banking Day" means any day on which dealings in deposits in
U.S. Dollars are transacted in the London interbank market. All percentages
resulting from calculations will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point being rounded upwards, and all currency or currency unit
amounts used and resulting from such calculations on this Note will be rounded
to the nearest one-hundredth of a unit (with .005 of a unit being rounded
upwards).
B. If this is a Fixed Rate Note, the Company promises
to pay interest on the Principal Amount stated on the face hereof at the rate
per annum shown on the face hereof until such Principal Amount is paid or made
available for payment. The Company will pay interest semi-annually each
February 1 and August 1 or, if otherwise specified on the face hereof, such
other dates (each an "Interest Payment Date"), commencing with the Interest
Payment Date immediately following the Original Issue Date shown on the face
hereof (subject to the last proviso in Section 2.A hereof) and on the Maturity
Date or earlier Redemption Date or Repayment Date. Interest will accrue from
and including the most recent Interest Payment Date or, if no interest has been
paid or duly provided for, from and including the Original Issue Date, in each
case, to but excluding the Interest Payment Date. Unless otherwise specified
on the face hereof, the amount of such interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day months.
C. If this is a Floating Rate Note, the Company
promises to pay interest on the Principal Amount stated on the face hereof at
the rate per annum equal to the Initial Interest Rate shown on the face hereof
until the first Interest Reset Date shown on the face hereof following the
Original Issue Date specified on the face hereof and thereafter at a rate
determined in accordance with the provisions below under the heading
"Determination of CD Rate," "Determination of Commercial Paper Rate,"
"Determination of Federal Funds Rate," "Determination of LIBOR," "Determination
of Prime Rate," "Determination of Treasury Rate" or "Determination of Kenny
Rate" depending upon whether the Base Rate specified on the face hereof is CD
Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR, Prime Rate, Treasury
Rate or Kenny Rate, respectively, until the principal hereof is paid or duly
made available for payment. The Company will pay interest monthly, quarterly,
semi-annually or annually as specified on the face hereof under "Interest
Payment Period", commencing with the first Interest Payment Date specified on
the face hereof next succeeding the Original Issue Date (subject to the last
proviso in Section 2.A hereof), and on the Maturity Date or earlier Redemption
Date or Repayment Date. Unless otherwise provided on the face hereof, the
dates on which interest will be payable (each an "Interest Payment Date") will
be, in the case of Notes with a monthly Interest Payment Period, the third
Wednesday of each month; in the case of Notes with a quarterly Interest Payment
Period, the third Wednesday of
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<PAGE> 6
March, June, September and December; in the case of Notes with a semi-annual
Interest Payment Period, the third Wednesday of the two months specified on the
face hereof; and in the case of Notes with an annual Interest Payment Period,
the third Wednesday of the month specified on the face hereof; provided,
however, that if an Interest Payment Date would fall on a day that is not a
Business Day, such Interest Payment Date shall be the following day that is a
Business Day, except that in case the Base Rate is LIBOR, as specified on the
face hereof, if such date falls in the next calendar month, such Interest
Payment Date shall be the immediately preceding Business Day.
Unless otherwise specified on the face hereof, the interest
payable on a Floating Rate Note on each Interest Payment Date will include
accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to but excluding such Interest Payment Date; provided, however, that if
the Interest Reset Period is daily or weekly, the interest payable on each
Interest Payment Date, other than on the Maturity Date or earlier Redemption
Date or Repayment Date, will include accrued interest from and including the
Original Issue Date or from but excluding the last date in respect of which
interest has been paid, as the case may be, to, and including the Regular
Record Date immediately preceding such Interest Payment Date, and the interest
payable on the Maturity Date or earlier Redemption Date or Repayment Date will
include accrued interest to, but excluding, the Maturity Date or earlier
Redemption Date or Repayment Date. Such accrued interest will be calculated by
multiplying the principal amount hereof by an accrued interest factor. This
accrued interest factor shall be computed by adding the interest factors
calculated for each day in the period for which accrued interest is being
calculated. Unless otherwise specified on the face hereof, the interest factor
(expressed as a decimal) for each such day shall be computed by dividing the
interest rate applicable to such day by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, Federal Funds Rate, LIBOR or Prime Rate, as indicated on
the face hereof, by the actual number of days in the year if the Base Rate is
Treasury Rate, as indicated on the face hereof, or by 365 if the Base Rate is
Kenny Rate, as indicated on the face hereof. The interest rate in effect on
each day will be (a) if such day is an Interest Reset Date, the interest rate
with respect to the Interest Determination Date pertaining to such Interest
Reset Date or (b) if such day is not an Interest Reset Date, the interest rate
with respect to the Interest Determination Date (as defined below) pertaining
to the next preceding Interest Reset Date, provided, however, that (i) the
interest rate in effect from the Original Issue Date to the first Interest
Reset Date will be the Initial Interest Rate and (ii) unless otherwise
specified on the face hereof, the interest rate in effect for the ten calendar
days immediately prior to the Maturity Date or earlier Redemption Date or
Repayment Date will be the rate in effect on the tenth calendar day preceding
the Maturity Date or earlier Redemption Date or Repayment Date.
Notwithstanding the foregoing, the interest rate shall not be greater than the
Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any,
shown on the face hereof. In addition, the interest rate shall in no event be
higher than the maximum rate, if any, permitted by California law. Commencing
with the first Interest Reset Date specified on the face hereof following the
Original Issue Date and thereafter upon each succeeding Interest Reset Date
specified on the face hereof, the rate at which interest on a Floating Rate
Note is payable shall be adjusted as provided herein; provided, however, that
if any Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next day that is a Business
Day, except that (i) if the Base Rate is LIBOR and such Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day or (ii) if the Base Rate is Kenny Rate, such
Interest Reset Date shall not be postponed but shall remain the date specified
on the face hereof; and provided further, that if the Base Rate is Treasury
Rate and the Interest Reset Date falls on a date which is an auction date, the
Interest Reset Date shall be the following day that is a Business Day.
Unless otherwise indicated on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date will be, if the Base
Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate or Prime Rate, the
second Business Day
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<PAGE> 7
next preceding such Interest Reset Date. Unless otherwise indicated on the
face hereof, the Interest Determination Date pertaining to an Interest Reset
Date will be, if the Base Rate is LIBOR, the second London Banking Day next
preceding such Interest Reset Date. Unless otherwise indicated on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date
will be, if the Base Rate is Treasury Rate, the day of the week in which such
Interest Reset Date falls on which Treasury bills (as defined below) of the
Index Maturity specified on the face hereof are auctioned. Treasury bills are
normally auctioned on Monday of each week, unless that day is a legal holiday,
in which case the auction is normally held on the following Tuesday, except
that such auction may be held on the preceding Friday. If, as a result of a
legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. Unless otherwise indicated on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date
will be, if the Base Rate is Kenny Rate, the day, of the calendar week in which
such Interest Reset Date falls, on which Kenny Information Systems or Lehman
Brothers Special Financing Inc., announces the applicable index or rate, as the
case may be. Kenny Information Systems normally publishes its index on Tuesday
of each week, unless that day is a legal holiday, in which case, it is
published on Wednesday.
Except as otherwise specified on the face hereof, on each
Interest Reset Date the rate of interest shall be the rate determined in
accordance with the provisions of the applicable heading below.
Determination of CD Rate. If the Base Rate is CD Rate, as
indicated on the face hereof, the interest rate shall equal (a) the rate on the
applicable Interest Determination Date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof (1) as published by the
Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519) Selected Interest Rates" or any successor publication of the Board of
Governors of the Federal Reserve System ("H.15(519)"), under the heading "CDs
(Secondary Market)" or (2) if such rate is not so published by 3:00 P.M., New
York City time, on the Calculation Date (as defined below) pertaining to such
Interest Determination Date, then as published by the Federal Reserve Bank of
New York in its daily statistical release "Composite 3:30 P.M. Quotations for
U.S. Government Securities" (the "Composite Quotations") under the heading
"Certificates of Deposit" or (b) if neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the arithmetic mean (as
calculated by the Calculation Agent) of the secondary market offered rates as
of 10:00 A.M., New York City time, on such Interest Determination Date of three
leading nonbank dealers in negotiable U.S. Dollar certificates of deposit in
The City of New York, selected by the Calculation Agent, for negotiable
certificates of deposit of major United States money center banks of the
highest credit standing (in the market for negotiable certificates of deposit)
with a remaining maturity closest to the Index Maturity (as specified on the
face hereof) in a denomination of $5,000,000, in each of the above cases
adjusted by the addition or subtraction (as the case may be) of the Spread, if
any, specified on the face hereof which is applicable to the Interest Reset
Period, and/or by multiplication by the Spread Multiplier, if any, specified on
the face hereof, which is applicable to the Interest Reset Period; provided,
however, that if such dealers are not quoting as mentioned above, the interest
rate in effect hereon until the Interest Reset Date next succeeding the
Interest Reset Date to which such Interest Determination Date relates shall be
the same as the rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate is
Commercial Paper Rate, as indicated on the face hereof, the interest rate
shall equal (a) the Money Market Yield (as defined herein) on the applicable
Interest Determination Date of the rate for commercial paper having the Index
Maturity specified on the face hereof (1) as published in H.15(519), under the
heading "Commercial Paper", or (2) if such yield is not so published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such Interest
Determination Date, then as published in the Composite Quotations under the
heading "Commercial Paper" or (b) if neither of such yields is published by
3:00 P.M., New York City time, on such Calculation
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<PAGE> 8
Date, the Money Market Yield of the arithmetic mean (as calculated by the
Calculation Agent) of the offered rates, as of 11:00 A.M., New York City time
on such Interest Determination Date, of three leading dealers of commercial
paper in The City of New York, selected by the Calculation Agent, for
commercial paper of the Index Maturity specified on the face hereof placed for
an industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency, in each of the above cases adjusted by the
addition or subtraction ( as the case may be) of the Spread, if any, specified
on the face hereof, which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period; provided, however, that if
such dealers are not quoting as mentioned above, the interest rate in effect
hereon until the Interest Reset Date next succeeding the Interest Reset Date to
which such Interest Determination Date relates shall be the same as the rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
D X 360
Money Market Yield = X 100
--------------------------
360 - (D X M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate. If the Base Rate is
Federal Funds Rate, as indicated on the face hereof, the interest rate shall
equal (a) the rate on the applicable Interest Determination Date for Federal
Funds (1) as published in H.15(519), under the heading "Federal Funds
(Effective)" or (2) if such rate is not so published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such Interest Determination
Date, then as published in the Composite Quotations under the heading "Federal
Funds/Effective Rate" or (b) if neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the arithmetic mean (as
calculated by the Calculation Agent) of the rates for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in New York City, selected by the Calculation Agent, as of 11:00
A.M., New York City time on such Interest Determination Date, in each of the
above cases adjusted by the addition or subtraction (as the case may be) of the
Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period; provided, however, that if such brokers are not quoting as mentioned
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the same as the rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the Initial
Interest Rate).
Determination of LIBOR. If the Base Rate is LIBOR, as
indicated on the face hereof, the interest rate shall be determined by the
Calculation Agent as follows: (i) with respect to an Interest Determination
Date, either, as specified on the face hereof: (a) the arithmetic mean of the
offered rates for deposits in U.S. Dollars having the Index Maturity specified
on the face hereof, commencing on the second London Banking Day immediately
following the applicable Interest Determination Date, which appear on the
Reuters Screen LIBO Page as of 11:00 A.M., London time, on such Interest
Determination Date, if at least two such offered rates appear on the Reuters
Screen LIBO Page ("LIBOR Reuters"), or (b) the rate for deposits in U.S.
Dollars having the Index Maturity specified on the face hereof, commencing on
the second London Banking Day immediately following that Interest Determination
Date, that appears on the Telerate Page 3750 as of 11:00 A.M., London time, on
that Interest Determination Date ("LIBOR Telerate"), in each of the above
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<PAGE> 9
cases adjusted by the addition or subtraction (as the case may be) of the
Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period. Unless otherwise specified on the face hereof, "Reuters Screen LIBO
Page" means the display designated as Page "LIBO" on the Reuters Monitor Money
Rate Service (or such other page as may replace the LIBO page on that service
for the purpose of displaying London interbank offered rates of major banks).
"Telerate Page 3750" means the display designated as page "3750" on the
Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits). If neither LIBOR Reuters nor LIBOR Telerate
is specified on the face hereof the interest rate will be determined as if
LIBOR Telerate had been specified. In the case where (a) above applies, if
fewer than two offered rates appear on the Reuters Screen LIBO Page, or, in the
case where (b) above applies if no rate appears on the Telerate Page 3750, as
applicable, the interest rate in respect of that Interest Determination Date
will be determined as if the parties had specified the rate described in (ii)
below.
(ii) With respect to an Interest Determination Date on
which this provision applies, the interest rate will be determined on the basis
of the rates at which deposits in U.S. Dollars having the Index Maturity
specified on the face hereof are offered at approximately 11:00 A.M., London
time, on such Interest Determination Date by four major banks ("Reference
Banks") in the London interbank market selected by the Calculation Agent to
prime banks in the London interbank market commencing on the second London
Banking Day immediately following such Interest Determination Date and in a
principal amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. The Calculation Agent will
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the
interest rate for such Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two quotations are provided, the interest
rate for such Interest Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., New York City time, on such Interest
Determination Date by three major banks in The City of New York selected by the
Calculation Agent for loans in U.S. Dollars to leading European banks having
the Index Maturity specified on the face hereof on the second London Banking
Day immediately following such Interest Determination Date and in a principal
amount equal to an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such time; provided,
however, that if the banks selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the interest rate in effect hereon
until the Interest Reset Date next succeeding the Interest Reset Date to which
such Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). In each of the above cases, the
interest rate shall be adjusted by the addition or subtraction (as the case may
be) of the Spread, if any, specified on the face hereof, which is applicable to
the Interest Reset Period, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof, which is applicable to the Interest Reset
Period.
Determination of Prime Rate. If the Base Rate is Prime
Rate, as indicated on the face hereof, the interest rate shall equal the rate
set forth on such date in H.15(519) under the heading "Bank Prime Loan." In
the event that such rate is not published prior to 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
then the interest rate will be determined by the Calculation Agent and will be
[the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Telerate Page 38 as such bank's prime rate or base lending
rate as in effect for that Interest Determination Date. If fewer than four
such rates appear on the Telerate Page 38 then the interest rate will be
determined by the Calculation Agent and will be] the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the Reuters
Screen NYMF Page (as defined herein) as such bank's prime
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<PAGE> 10
rate or base lending rate as in effect for that Interest Determination Date.
If fewer than four such rates appear on the Reuters Screen NYMF Page for such
Interest Determination Date, the interest rate will be determined by the
Calculation Agent and will be the arithmetic mean of the prime rates quoted on
the basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Interest Determination Date by at least two of
three major money center banks in The City of New York selected by the
Calculation Agent. If fewer than two such rates are quoted as aforesaid, the
interest rate will be determined by the Calculation Agent on the basis of the
rates furnished in The City of New York by one or two, as the case may be,
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, having total equity capital of at
least U.S. $500,000,000 and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent to provide such
rate or rates; provided, however, that if the banks selected as aforesaid are
not quoting as set forth above, the interest rate in effect hereon until the
Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the same as the rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the Initial Interest Rate). In each of the above cases, the
interest rate shall be adjusted by the addition or subtraction (as the case may
be) of the Spread, if any, specified on the face hereof, which is applicable to
the Interest Reset Period, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof, which is applicable to the Interest Reset
Period. "Reuters Screen NYMF Page" means the display designated as page "NYMF"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the NYMF page on that service for the purpose of displaying the prime rate or
base lending rate of major United States banks. ["Telerate Page 38" means the
display designated as page "38" on the Telerate Service.]
Determination of Treasury Rate. If the Base Rate is
Treasury Rate, as indicated on the face hereof, the interest rate shall equal
the rate for the auction held on the applicable Interest Determination Date of
direct obligations of the United States ("Treasury bills") having the Index
Maturity shown on the face hereof as published in H.15(519) under the heading
"U.S. Government Securities -- Treasury bills -- auction average (investment)"
or, if not so published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the auction average rate
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury, in either case, adjusted by the addition or
subtraction (as the case may be) of the Spread, if any, specified on the face
hereof, which is applicable to the Interest Reset Period, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof,
which is applicable to the Interest Reset Period. In the event that the
results of the auction of Treasury bills having the Index Maturity shown on the
face hereof are not published or reported as provided above by 3:00 P.M., New
York City time, on such Calculation Date or if no such auction is held in a
particular week, then the rate of interest hereon shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time on such Interest
Determination Date, of three leading primary United States government
securities dealers, selected by the Calculation Agent, for the issue of
Treasury bills with a remaining maturity closest to the Index Maturity shown on
the face hereof, adjusted by the addition or subtraction (as the case may be)
of the Spread, if any, specified on the face hereof, which is applicable to the
Interest Reset Period, and/or by multiplication by the Spread Multiplier, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the interest
rate in effect hereon until the Interest Reset Date next succeeding the
Interest Reset Date to which such Interest Determination Date relates shall be
the same as the rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the Initial Interest Rate).
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<PAGE> 11
Determination of Kenny Rate. If the Base Rate is Kenny
Rate, as indicated on the face hereof, the interest rate shall equal (a) the
per annum rate on the applicable Interest Determination Date equal to the index
published by the Kenny Information Systems or its successor, based upon 30-day
yield evaluations at par of bonds, the interest on which is excludable from
gross income for federal income tax purposes under the Internal Revenue Code of
1986, as amended (the "Code"), of not less than five "high grade" component
issuers selected from time to time by the Kenny Information Systems, including
without limitation, issuers of general obligation bonds, provided however that
the bonds on which the Index is based shall not include any bonds the interest
on which is subject to an "alternate minimum tax" or similar tax under the
Code, unless all tax-exempt bonds are subject to such tax or (b) if such rate
is not published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the rate quoted by Lehman
Brothers Special Financing Inc. or its successor equalling the prevailing rate
for bonds rated in the highest short-term rating category by Moody's Investors
Service and Standard & Poor's Corporation in respect of issuers selected by
Lehman Brothers Special Financing Inc. most closely resembling the "high grade"
component issuers selected by Kenny Information Systems that are subject to
tender by the holders thereof for purchase on not more than seven (7) days
notice and the interest on which is (i) variable on a weekly basis, (ii)
excludable from gross income for Federal income tax purposes under the Code,
and (iii) not subject to an "alternate minimum tax" or similar tax under the
Code, unless all tax-exempt bonds are subject to such tax; provided, however,
that if Lehman Brothers Special Financing Inc. is not quoting as mentioned in
this sentence, the interest rate in effect hereon until the Interest Reset Date
next succeeding the Interest Reset Date to which such Interest Determination
Date relates shall be the same as the rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the
Initial Interest Rate). In each of the above cases, the interest rate shall be
adjusted by the addition or subtraction (as the case may be) of the Spread, if
any, specified on the face hereof, which is applicable to the Interest Reset
Period, and/or by multiplication by the Spread Multiplier, if any, specified on
the face hereof, which is applicable to the Interest Reset Period.
Unless otherwise specified on the face hereof, the
Calculation Date pertaining to an Interest Determination Date shall be the
earlier of (i) the tenth calendar day after such Interest Determination Date
or, if any such day is not a Business Day, the next succeeding Business Day or
(ii) the Business Day preceding the applicable Interest Payment Date or
Maturity Date or earlier Redemption Date or Repayment Date. The Calculation
Agent shall calculate the interest rate hereon in accordance with the foregoing
and will confirm in writing such calculation to the Trustee and any Paying
Agent immediately after each determination. Neither the Trustee nor any Paying
Agent shall be responsible for any such calculation. At the request of the
Holder hereof, the Calculation Agent will provide the interest rate hereon then
in effect and, if determined, the interest rate which will become effective as
of the next Interest Reset Date.
3. Payments in U.S. Dollars of interest (other than interest
payable on the Maturity Date or earlier Redemption Date or Repayment Date) will
be made by check mailed to the Holder at the address appearing on the Register
on the applicable Record Date. Notwithstanding the foregoing, the Company may
at its option elect to make payments in U.S. Dollars by wire transfer of
immediately available funds but only if appropriate payment instructions have
been received in writing by the Trustee not less than fifteen calendar days
prior to the applicable Interest Payment Date. Simultaneously with any
election by the Holder hereof to receive payments of principal and any premium
and interest in a Specified Currency other than U.S. Dollars, such Holder shall
provide appropriate payment instructions to the Trustee, and all such payments
will be made in immediately available funds to an account maintained by the
payee with a bank located outside the United States. Unless indicated on the
face hereof that this Note is a Global Security, the principal hereof and any
premium and interest hereon payable on the Maturity Date or earlier Redemption
Date or Repayment Date will be paid in immediately available funds upon
surrender of this Note at the office or agency of the Company in The City of
New York. If indicated on the face hereof that this Note is a Global Security,
the
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<PAGE> 12
principal hereof and any premium and interest due on any Interest Payment Date
or on the Maturity Date or earlier Redemption Date or Repayment Date will be
made available to the Trustee on such date. As soon as possible thereafter,
the Trustee will make such payments to the Depositary in accordance with
existing arrangements between the Trustee and the Depositary.
4. If specified on the face hereof, this Note may be redeemed,
as a whole or from time to time in part, at the option of the Company, unless
otherwise specified on the face hereof, on not less than 30 nor more than 60
days' prior notice given as provided in the Indenture, on any Redemption
Date(s) and at the related Redemption Price(s) set forth on the face hereof.
If less than all the Outstanding Notes of like tenor and terms are to be
redeemed, the particular Notes to be redeemed shall be selected by the Trustee
not more than 60 days prior to the Redemption Date from the Outstanding Notes
of like tenor and terms not previously called for redemption. Such selection
shall be of principal amounts equal to the minimum authorized denomination for
such Notes or any integral multiple thereof. Subject to the immediately
preceding sentence, such selection shall be made by any method as the Trustee
deems fair and appropriate. The notice of such redemption shall specify which
Notes are to be redeemed. In the event of redemption of this Note in part
only, a new Note or Notes of this series of like tenor and terms for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
5. If specified on the face hereof, this Note will be subject
to repayment at the option of the Holder hereof on the Repayment Date(s) and at
the Repayment Price(s) indicated on the face hereof. If no such Repayment Date
is set forth on the face hereof, this Note may not be so repaid at the option
of the Holder hereof prior to the Maturity Date. On each Repayment Date, if
any, this Note shall be repayable in whole or in part at the option of the
Holder hereof at the applicable Repayment Price set forth on the face hereof,
together with interest thereon to the date of repayment. For this Note to be
repaid in whole or in part at the option of the Holder hereof, the Company must
receive at the Corporate Trust Office of the Trustee in the City of
________________, or at the office or agency of the Company maintained for such
purposes in the Borough of _____________, The City of New York, unless
otherwise specified on the face hereof, at least 30 days, but not more than 45
days, prior to the specified Repayment Date (i) this Note with the form
entitled "Option to Elect Repayment" below duly completed or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth the name of the Holder of this Note, the principal amount of this Note,
the certificate number of this Note or a description of this Note's tenor and
terms, the principal amount of this Note to be repaid (which shall not be less
than the minimum authorized denomination of this Note), a statement that the
option to elect repayment is being exercised thereby and a guarantee that this
Note to be repaid with the form entitled "Option to Elect Repayment" on this
Note duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter and such Note and form duly completed are received by the Company by
such fifth Business Day. Exercise of such repayment option shall be
irrevocable. Such option may be exercised by the Holder for less than the
entire principal amount provided that the principal amount remaining
outstanding after repayment, if any, is an authorized denomination. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company whose
determination will be final and binding.
6. If the Specified Currency is other than U.S. Dollars, unless the
Holder has elected otherwise, payment in respect of this Note shall be made in
U.S. Dollars based upon the Exchange Rate, as determined by the exchange rate
agent appointed by the Company for such purpose as identified on the face
hereof (the "Exchange Rate Agent") based on the highest firm bid quotation for
U.S. Dollars received by such Exchange Rate Agent at approximately 11:00 A.M.
New York City time on the second Business Day preceding the applicable payment
date (or, if no such rate is quoted on such date, the last date on which such
rate was quoted) from three recognized
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<PAGE> 13
foreign exchange dealers in The City of New York selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the payment by the quoting dealer, for settlement on such payment date, of
the aggregate amount of the Specified Currency payable on such payment date in
respect of all Notes denominated in such Specified Currency. All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If no such bid quotations are available, payments will be made
in the Specified Currency, unless such Specified Currency is unavailable due to
the imposition of exchange controls or to other circumstances beyond the
Company's control, in which case, the Company will be entitled to make payments
in respect hereof in U.S. Dollars as provided below.
If payment on this Note is required to be made in a
Specified Currency other than U.S. Dollars and such currency is unavailable due
to the imposition of exchange controls or to other circumstances beyond the
Company's control, or is no longer used by the government of the country
issuing such currency or for the settlement of transactions by public
institutions of or within the international banking community, then all
payments with respect to such Note shall be made in U.S. Dollars until such
currency is again available or so used. The amount so payable on any date in
such Specified Currency shall be converted into U.S. Dollars by the Exchange
Rate Agent on the basis of the most recently available noon buying rate in The
City of New York for cable transfers in such Specified Currency as certified
for customs purposes by the Federal Reserve Bank of New York (the "Market
Exchange Rate") on the most recent practicable date.
All determinations referred to above of the Exchange Rate
Agent shall be at its sole discretion (except to the extent expressly provided
herein that any determination is subject to approval of the Company). In the
absence of manifest error, such determinations shall be conclusive for all
purposes and binding upon all Holders of this Note.
7. If an Event of Default with respect to the Notes shall occur and
be continuing, the principal of all of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture. If this
Note is an Original Issue Discount Note (as specified on the face hereof) and
the principal hereof is declared to be due and payable immediately pursuant to
this Section, the amount of principal due and payable with respect to this Note
shall be limited to the sum of the principal amount of this Note multiplied by
the Issue Price (expressed as a percentage of the aggregate principal amount),
plus the original issue discount accrued from the date of issue to the date of
declaration, which accrual shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of declaration).
8. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series under the Indenture to be effected at any time by the Company with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
9. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein and
in the Indenture prescribed.
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<PAGE> 14
10. The Notes are issuable only in registered form without coupons.
The authorized denominations of Notes denominated in U.S. Dollars will be U.S.
$100,000 and/or any amount in excess thereof which is an integral multiple of
U.S. $1,000. The authorized denominations of Notes denominated in currency
other than U.S. Dollars will be as set forth on the face hereof.
11. As provided in the Indenture and subject to certain limitations
set forth therein and herein, the transfer of this Note is registerable in the
Security Register, upon surrender of this Note for registration of transfer at
the office of the Security Registrar for this series (initially,
__________________________). Every Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Trustee, the Security Registrar or any transfer agent, duly executed by the
Holder hereof or its attorney duly authorized in writing, and thereupon one or
more new Notes of like tenor and terms of authorized denominations and for the
same aggregate principal amount, will be issued in the name or names of the
designated transferee or transferees and delivered at the office of the
Security Registrar in ________________, ______________, or mailed, at the
request, risk and expense of the transferee or transferees, to the addressee or
addressees shown in the Security Register for such transferee or transferees.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Note during a period beginning at the opening of business 15 days
before the day of the mailing of the relevant notice of redemption and ending
at the close of business on the day for such mailing or (ii) to register the
transfer of or exchange any Note so selected for redemption, in whole or in
part, except the unredeemed portion of any such Note being redeemed in part.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. Prior to due
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
12. No recourse shall be had for the payment of the principal of or
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
company, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
13. Unless otherwise defined herein, all terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
14. This Note, including without limitation the obligation of the
Company contained herein to pay the principal of and interest on this Note in
accordance with the terms hereof and of the Indenture, shall be construed in
accordance with and governed by the laws of the State of California.
15. "Global Security" and "Global Securities" means a Security or
Securities evidencing all or a part of a series of Securities, issued to the
Depositary (as hereinafter defined) for such Series or its nominee, and
registered in the name of such Depositary or its nominee. "Depositary" means,
with respect to the Securities of any series issuable or issued in whole or in
part in the form of one or more Global Securities, the person designated as the
Depositary by the Company.
16. If indicated on the face hereof that this Note is a Global
Security, no holder of any beneficial interest in this Note held on its behalf
by a Depositary or a nominee of such Depositary shall have any rights under the
Indenture with respect to such Global Security, and such Depositary or nominee
may be treated by the
14
<PAGE> 15
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary and such
holders of beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depositary as Holder of any Security.
17. If not indicated on the face hereof that this Note is a Global
Security, this Note is exchangeable for a like aggregate principal amount of
Notes of a different authorized denomination, as requested by the Holder
surrendering the same, as provided in the Indenture and subject to certain
limitations therein set forth. If indicated on the face hereof that this Note
is a Global Security, it is exchangeable, in whole but not in part, for Notes
registered in the names of Persons other than the Depositary or its nominee or
in the name of a successor to the Depositary or a nominee of such successor
depositary only if (i) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for this Note or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, in either case, a successor depositary
is not appointed by the Company within 90 days, (ii) the Company in its
discretion at any time determines not to have all of the Notes of this series
represented by one or more Global Security or Securities and notifies the
Trustee thereof, or (iii) an Event of Default has occurred and is continuing
with respect to the Notes of this series. If this Note is exchangeable
pursuant to the preceding sentence, it shall be exchangeable for Notes issuable
in authorized denominations and registered in such names as the Depositary
holding this Note shall direct. Subject to the foregoing, if this Note is a
Global Security it is not exchangeable, except for a Note or Notes of the same
aggregate denominations to be registered in the name of such Depositary or its
nominee or in the name of a successor to the Depositary or a nominee of such
successor depositary.
15
<PAGE> 16
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Company to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the applicable Repayment Price thereof together
with accrued and unpaid interest to the Repayment Date, to the undersigned at
______________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
For this Note to be repaid, the Company must receive this
Note, with this "Option to Elect Repayment" form duly completed, at the office
or agency of the Company set forth in this Note, at least 30 days but not more
than 45 days, prior to the Repayment Date(s) (as set forth on the face hereof).
If less than the entire principal amount of this Note is to
be repaid, specify the portion thereof which the Holder elects to have repaid
________________; and specify the denomination or denominations (which shall be
in authorized denominations) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
________________________________________.
Date:_____________________________ _______________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this Note
in every particular without alteration or
enlargement.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ______________ Custodian ______________ under Uniform Gifts
(Cust) (Minor)
to Minors Act __________________
(State)
Additional abbreviations may also be used though not in the above list.
16
<PAGE> 17
FORM OF
OPTION TO EXTEND MATURITY
The undersigned hereby irrevocably requests and instructs
the Company to extend the Maturity Date to _____________ __ of USL Capital
Corporation's Medium-Term Note represented by certificate number _____________
in aggregate principal amount of $_____________ and registered in the name of
the undersigned.
For the Maturity Date of the Note to be extended, the
Trustee must receive a notice in this form duly completed, together with the
Note, at the office or agency of the Trustee set forth in the Note, prior to
but not more than ten Business Days prior to the applicable Notice of Extension
Date shown on the face thereof.
Date: ______________________________ ____________________________________
NOTICE: The signature on this Form
must correspond with the name as
written upon the face of the Note in
every particular without alteration
or enlargement.
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<PAGE> 18
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto ____________________ [PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE] ____________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF TRANSFEREE) the within Note, and
all rights thereunder, hereby irrevocably constituting and appointing
______________________________ Attorney to transfer said Note on the books of
the Company, with full power of substitution in the premises.
Date ______________________________ _________________________________________
NOTICE: The signature to this assignment
must be guaranteed by a commercial bank or
trust company in the continental United
States or by a firm or corporation having
membership on any national securities
exchange or in the National Association of
Securities Dealers, Inc., and must
correspond with the name as written upon
the face of the within instrument in every
particular without alteration or
enlargement or any change whatever.
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<PAGE> 1
EXHIBIT 4.4
USL CAPITAL CORPORATION
FORM OF WARRANT AGREEMENT*
THIS WARRANT AGREEMENT dated as of _________________ between
USL Capital Corporation, a Delaware corporation (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to) and _______________________ as Warrant Agent (herein
called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"Indenture") dated as of [Date], between the Company and ____________________,
as trustee (the "Trustee"), providing for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (the "Debt
Securities"), to be issued in one or more series as provided in the Indenture;
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities -- [title of Debt Securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through exercise of Warrants] (the
"Warrant Securities"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
_________________________
* Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants, Warrant Securities and Offered Securities. Monetary
amounts may be in U.S. dollars or in foreign currency or European Currency
Units ("ECU").
<PAGE> 2
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _______________ (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of __________. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence _____Warrants for each __________ principal amount of Offered
Securities included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in [registered] [bearer]
form substantially in the form set forth in Exhibit A hereto, shall be dated
______________ and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chief Executive Officer, Chief
Financial Officer or the Treasurer and by its Secretary or one of its Assistant
Secretaries under its corporate seal reproduced thereon. Such signatures may
be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The seal of the
Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive
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<PAGE> 3
evidence that the Warrant Certificate so countersigned has been duly issued
hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the
Detachable Date, the Company will, or will cause the registrar of the Offered
Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date]].
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding __________ aggregate principal amount of Warrant Securities (except
as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant Agreement
or from time to time thereafter. The Warrant Agent shall, upon receipt of
Warrant Certificates duly executed on behalf of the Company, countersign
Warrant Certificates evidencing Warrants representing the right to purchase up
to __________ principal amount of Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or
as provided in Section 2.03(c).
Section 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant
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<PAGE> 4
Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or __________________], without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from
______________ through and including ____________, the exercise price of each
Warrant will be _________ plus [accrued amortization of the original issue
discount] [accrued interest] from ________________. During the period from
_______________ through and including __________, the exercise price of each
Warrant will be __________ plus [accrued amortization of the original issue
discount] [accrued interest] from ____________. [In each case, the original
issue discount will be amortized at a ____% annual rate, computed on an annual
basis using the "interest" method and using a 360-day year consisting of twelve
30-day months.] Such purchase price of Warrant Securities is referred to in
this Agreement as the "Warrant Price". [The original issue discount for each
_________ principal amount of Warrant Securities is __________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [________________] and at or before 5:00 P.M., [New York City] [San
Francisco] time, on ________________ [or such later date as the Company may
designate, by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent] (the "Expiration Date"). Each Warrant not exercised at or
before 5:00 P.M., [New York City] [San Francisco] time, on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
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<PAGE> 5
SECTION 2.03. Exercise of Warrants. (a) During the period
specified in Section 2.02 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the United States of
America] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] [in
immediately available funds] the Warrant Price for each Warrant exercised, to
the Warrant Agent at its corporate trust office [or at __________], provided
that such exercise is subject to receipt within five business days of such
[payment] [wire transfer] by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed [including
any applicable certifications if the Warrant Securities are issuable in bearer
form]. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it [if non-dollar
denominated funds -- or in such other account designated by the Company] and
shall advise the Company by telephone at the end of each day on which a
[payment] [wire transfer] for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating
to the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or such Trustee shall reasonably
require.
(c) As promptly as practicable after the exercise of any
Warrant, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Securities to which such holder is
entitled, in [fully registered form, registered in such name or names as may be
directed by such holder] [bearer form, provided the holder has furnished to the
Warrant Agent all certifications required by applicable U.S. Treasury
regulations for the delivery of bearer securities and only if the Company has
no reason to know that the certification(s) is false]. If fewer than all of
the Warrants evidenced by such Warrant Certificate are exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised. [Unless otherwise instructed
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<PAGE> 6
by the Company, Warrant Securities in bearer form shall be delivered to or upon
the order of the holder of such Warrant Certificate only outside the United
States and its possessions.]
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of principal of, premium, if any, or interest on Warrant
Securities or to enforce any of the covenants in the Indenture.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, 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 Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to
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<PAGE> 7
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or
Lease. If at any time there shall be a merger, consolidation or conveyance,
transfer or lease of assets subject to Section 801 of the Indenture, then in
any such event the successor or assuming corporation referred to therein shall
succeed to and be substituted for the Company, with the same effect, subject to
the Indenture, as if it had been named herein and in the Warrant as the
Company; the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Warrants issuable hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Warrant Securities in its own name
pursuant to such Indenture, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued
shall in all respects have the same legal rank and benefit under this Agreement
as the Warrants theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Warrants had been issued at the date of
the execution hereof. In any case of any such consolidation, merger,
conveyance or transfer or lease, such changes in phraseology and form (but not
in substance) may be made in the Warrants thereafter to be issued as may be
appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, conveyance
or transfer complies with the provisions of this Section 3.04 and the
Indenture.
7
<PAGE> 8
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants which are immediately detachable -- Upon]
[If Offered Securities with Warrants which are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to
any Detachable Date, each transfer of the Offered Security [on the register of
the Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or _______], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [or the transfer thereof may be registered in whole or
in part]; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. [The
Warrant Agent shall keep, at its corporate trust office [and at ________],
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or ________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall be
made for any exchange [or registration of transfer] of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or other governmental charge that may be imposed in connection with
any such exchange [or registration of transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or registration of transfer], an
authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange [or registration of
transfer] which will result in the issuance of a Warrant Certificate evidencing
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange [or registration of
transfer] of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificate surrendered for such exchange
[or registration of transfer].
8
<PAGE> 9
SECTION 4.02. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose or as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date,] [If registered Warrants -- and prior to due presentment of a
Warrant Certificate for registration for registration of transfer,] the
Company, the Warrant Agent and all other persons may treat the holder of a
Warrant Certificate as the owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange [, registration of transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
________________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein
set forth; and ____________ hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
9
<PAGE> 10
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out
of or in connection with its acting as Warrant Agent hereunder, as
well as the costs and expenses of defending against any claim of such
liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligations or relationship of agency or trust for or with any of the
holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or
thing suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper
or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire
any interest in, Warrants, with the same rights that it or they would
have if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in
any financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of the Company as freely as
if it were not the Warrant Agent hereunder. Nothing in this Agreement
shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for
interest on any monies at any time received by it pursuant
10
<PAGE> 11
to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or
any of, the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon).
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or
representations herein or in the Warrant Certificates (except as to
the Warrant Agent's countersignature thereon), all of which are made
solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant
Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a holder of a Warrant Certificate
with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time
of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised or
are no longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its
part, specifying the date on which its desired resignation shall
become effective; provided that such date shall not be less than three
months after the date on which such notice is given unless the Company
otherwise agrees. The Warrant Agent hereunder may be removed at any
time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and
11
<PAGE> 12
the date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust
company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of
the Company under Section 5.02(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall commence a
voluntary case under the federal bankruptcy laws, as now or hereafter
constituted, or under any other applicable federal or state
bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall
make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due,
or shall take corporate action in furtherance of any such action, or a
decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its
property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the
purpose of rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder, and
thereupon such successor Warrant Agent, without any further act, deed
or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer,
12
<PAGE> 13
deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on
deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the
Warrant Agent may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Warrant Agent
shall be a party, or any corporation to which the Warrant Agent shall
sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided
that such action shall not affect adversely the interests of the holders of the
Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
______________________________ __________ Attention: ____________ and any
communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to USL Capital Corporation, 733 Front Street, San
Francisco, California 94111, Attention: __________________ (or such other
address as shall be specified in writing by the Warrant Agent or by the
Company).
SECTION 6.04. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and
13
<PAGE> 14
provisions thereof shall be governed by, and construed in accordance with, the
laws of the State of California.
SECTION 6.05. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery
of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
federal and state laws (including without limitation a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF USL Capital Corporation and
___________________ have caused this Agreement to be signed by their respective
duly authorized officers, and their respective
14
<PAGE> 15
corporate seals to be affixed hereunto, and the same to be attested by their
respective Secretaries or one of their respective Assistant Secretaries, all as
of the day and year first above written.
USL Capital Corporation
By
-------------------------------
Title:
Attest:
- ----------------------------
Title:
[Warrant Agent]
By
-------------------------------
Title:
Attest:
- ----------------------------
Title:
15
<PAGE> 16
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to ______________ this
Offered Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable. attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants Prior to ______________, Warrants
are not immediately evidenced by this Warrant
exercisable. Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
USL CAPITAL CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M. [NEW YORK CITY][SAN FRANCISCO] TIME, ON __________
No. __________ __________ Warrants
This certifies that [the bearer is the] [_________
_________________ or registered assigns is the registered] owner of the above
indicated number of Warrants, each Warrant entitling such owner [if Offered
Securities with Warrants which are not immediately detachable -- , subject to
the [bearer] [registered owner] qualifying as a "holder" of this Warrant
Certificate, as hereinafter defined] to purchase, at any time [after 5:00 P.M.,
[New York City] [San Francisco] time, on ___________ and] on or before 5:00
P.M., [New York City] [San Francisco] time, ____________, __________ principal
amount of [Title of Warrant Securities] (the "Warrant Securities") of USL
Capital Corporation (the "Company"), issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: during the period
from ____________ through and including ____________ the exercise price of each
Warrant will be __________ plus [accrued amortization of the original issue
discount] [accrued interest] from ____________; during the period from
____________ through and including ____________, the exercise price of each
Warrant will be __________ plus [accrued amortization of the original issue
discount] [accrued interest] from ____________; [in each case, the original
issue discount will be amortized at a ____% annual rate,
A-1
<PAGE> 17
computed on an annual basis using the "interest" method and using a 360-day
year consisting of twelve 30-day months] (the "Warrant Price"). [The original
issue discount for each __________ principal amount of Warrant Securities is
_________.] The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full [in lawful money of the United States of America] [applicable
currency] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available
funds, the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office
of [name of Warrant Agent], or its successor as warrant agent (the "Warrant
Agent"), [or ___________] currently at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior to
_________ (the "Detachable Date"), the [bearer] [registered owner] of the
Company's [title of Offered Securities] to which this Warrant Certificate is
initially attached, and after such Detachable Date,] [the bearer of this
Warrant Certificate] [the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of __________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ___________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ________].
The Warrant Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an indenture (the "Indenture"), dated as of
[Date], between the Company and ___________________, as trustee (the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture.
A-2
<PAGE> 18
Copies of the Indenture and the form of the Warrant Securities are on file at
the corporate trust office of the Trustee [and at ________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to _____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or __________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.] [effected by delivery and the Company and the Warrant Agent may
treat the bearer hereof as the owner for all purposes.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or __________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ____________
USL Capital Corporation
By
-------------------------------
[title]
Attest:
- ----------------------------
Countersigned:
A-3
<PAGE> 19
- ------------------------------
As Warrant Agent
By
---------------------------
Authorized Signature
A-4
<PAGE> 20
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
in [Dollars] [applicable currency] [in cash or by certified check or official
bank check or by bank wire transfer] [by bank wire transfer] [in immediately
available funds] the Warrant Price in full for Warrants exercised to [insert
name of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. __________ [or _____________], which [payment] [wire transfer]
must specify the name of the holder and the number of Warrants exercised by
such holder. In addition, the holder must complete the information required
below, including any applicable certifications if the Warrant Securities are
issuable in bearer form, and present this Warrant Certificate in person or by
mail (certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
__________ Warrants, evidenced by this Warrant Certificate, to purchase
__________ principal amount of the [Title of Warrant Securities] (the "Warrant
Securities") of USL Capital Corporation and represents that he has tendered
payment for such Warrant Securities in [Dollars] [applicable currency] [in cash
or by certified check or official bank check or by bank wire transfer, in each
case] [by bank wire transfer] in immediately available funds to the order of
USL Capital Corporation, c/o [insert name and address of Warrant Agent], in the
amount of __________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Securities be in [bearer] [fully
registered] form in the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set forth below.
[However, unless otherwise designated by the Company, Warrant Securities in
bearer form shall be delivered to or upon the order of the holder of such
Warrant Certificate only outside the United States and its possessions.]
If the number of Warrants exercised is less than all
of the Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated: Name
------------------------ -------------------------------
A-5
<PAGE> 21
Address
- --------------------------- -----------------------
(Insert Social Security or
Other Identifying Number
of Holder) Signature
- --------------------------- ---------------------
[If registered Warrant -- [If registered Warrant -- Signature
Guaranteed (Signature must conform in all respects to the name of holder as
specified on the face of this Warrant Certificate and must bear a signature
guarantee by a bank, trust company or member broker of the New York, Midwest or
Pacific Stock Exchanges)].
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
By mail at
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-6
<PAGE> 22
[If registered Warrant]
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ________________________________ hereby
sells, assigns and transfers unto
- ------------------------------ -------------------------
(Please print name) (Please insert social
security or other
identifying number)
- ------------------------------
(Address)
- ------------------------------
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _____________Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
---------------------------------
Signature
(Signature must confirm in all respects
to the name of the holder as specified
on the face of this Warrant Certificate
and must bear a signature guarantee by
a bank, trust company or member broker
of the New York, Midwest or Pacific
Stock Exchange.)
Signature Guaranteed
- -----------------------------
A-7
<PAGE> 23
[Form of certificate to be given by person requesting
delivery of bearer Warrant Security upon
exercise of Warrant]*
CERTIFICATE**
USL CAPITAL CORPORATION
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: USL Capital Corporation
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant(s) (evidenced by the Warrant Certificate) relating to the Warrant
Securities, by delivery to you of the election to exercise dated __________.
The undersigned hereby certifies that as of the date hereof, the
Warrant Securities which are to be delivered to the undersigned in bearer form
upon the exercise of such Warrant(s) (i) are owned by persons that are not
citizens or residents of the United States of America (including the District
of Columbia) ("United States"), domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States federal
income taxation regardless of its source ("United States person"); (ii) are
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Warrant Securities through foreign branches
of United States financial institutions and who hold the Warrant Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder); or (iii) are owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Warrant Securities
is a United States or foreign financial institution described in clause (iii)
above (whether or not also described in clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the Warrant Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions. The undersigned undertakes
to promptly advise you by tested telex followed by written confirmation if the
statement in the immediately preceding sentence is not correct on the date of
delivery of the Warrant Securities in
A-8
<PAGE> 24
bearer form, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
The undersigned understands that this certificate is required in
connection with United States tax laws. In connection therewith, if
administrative or legal proceeding are commenced or threatened in connection
with which this certificate is or would be relevant, the undersigned
irrevocably authorizes you to produce this certificate or a copy hereof to any
interested party in such proceedings.
Dated:
------------------
-------------------------------------
As, or as agent for, the beneficial
owner(s) of the Warrant Securities to
which this certificate relates.
_______________
* Subject to change in accordance with changes in tax laws and regulations.
** Additional representations may be required of a dealer exercising the
Warrant(s).
A-9
<PAGE> 1
EXHIBIT 5
December 13, 1994
Board of Directors
USL Capital Corporation
733 Front Street
San Francisco, California 94111
Gentlemen:
At your request I have examined, or caused to be examined, the
Registration Statement on Form S-3 (the "Registration Statement") in the form
to be filed with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of
$1,500,000,000 of debt securities (the "Debt Securities") and/or warrants to
purchase Debt Securities (the "Warrants") of USL Capital Corporation, a
Delaware corporation (the "Corporation"). The Debt Securities are to be issued
under the Indenture between the Corporation and The Chase Manhattan Bank
(National Association), as trustee (the "Trustee" ), dated as of November 15,
1994 (the "Indenture"). The Warrants are to be issued pursuant to a warrant
agreement (the "Warrant Agreement") in the form filed as an exhibit to the
Registration Statement. The Debt Securities and Warrants are to be sold from
time to time as set forth in the Registration Statement, the prospectus
contained in the Registration Statement (the "Prospectus"), and supplements to
the Prospectus (the "Prospectus Supplements").
In rendering this opinion as to matters involving the application of
laws of jurisdications other than the State of California and the United
States, I have relied on opinions of other counsel and as to factual matters
not independently established by me, I have relied upon certificates of other
officers of the Company and public officials.
I am of the opinion that:
1. When the Debt Securities have been duly authorized, completed,
executed, authenticated, and delivered in accordance with the Indenture, and
the Debt Securities have been sold as described in the Registration Statement,
including the Prospectus and the Prospectus Supplements, and, with respect to
Debt Securities issuable upon exercise of the Warrants, the Warrant Agreement,
the Debt Securities will be legal, valid, and binding obligations of the
Corporation entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent
transfer, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and the application of usual equitable
principles regardless of whether equitable remedies are sought).
<PAGE> 2
Board of Directors
USL Capital Corporation
December 13, 1994
Page 2
2. When the Warrants have been duly authorized, completed,
executed, countersigned, and delivered in accordance with the Warrant Agreement
and the Warrants have been sold as described in the Registration Statement,
including the Prospectus and the Prospectus Supplements, the Warrants will be
legal, valid, and binding obligations of the Corporation entitled to the
benefits of the Warrant Agreement (subject to the limitations set forth in
paragraph 1 above).
I consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of my name under the caption "Validity" in the
Registration Statement, the Prospectus, and any amendments or supplements
thereto.
Very truly yours,
/s/ Henry Lerner
Henry Lerner
Senior Vice President,
General Counsel and Secretary
<PAGE> 1
EXHIBIT (12)
USL CAPITAL CORPORATION AND SUBSIDIARY COMPANIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------- ----------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
-------- -------- -------- -------- -------- -------- --------
(UNAUDITED; DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before taxes on income per
statement of income.............. $109,498 $ 86,660 $122,171 $ 89,051 $ 86,059 $ 51,114 $ 32,123
Add (deduct)
Fixed charges.................. 163,152 142,257 193,806 158,444 151,811 124,289 147,909
Distribution and proceeds in
excess of (less than) net
income and foreign exchange
gains or losses of associated
companies.................... 341 126 272 601 292 519 837
-------- -------- -------- -------- -------- -------- --------
Income as adjusted................. $272,991 $229,043 $316,249 $248,096 $238,162 $175,922 $180,869
========= ========= ========= ========= ========= ========= =========
Fixed charges:
Interest on indebtedness including
amortization of debt issue costs
and discount or premium
thereon.......................... $160,793 $139,332 $189,942 $154,157 $147,027 $117,237 $140,361
Interest factor of annual
rentals(1)....................... 2,359 2,925 3,864 4,287 4,784 7,052 7,548
-------- -------- -------- -------- -------- -------- --------
Fixed charges...................... $163,152 $142,257 $193,806 $158,444 $151,811 $124,289 $147,909
========= ========= ========= ========= ========= ========= =========
Ratio of earnings to fixed
charges.......................... 1.67 1.61 1.63 1.57 1.57 1.42 1.22
========= ========= ========= ========= ========= ========= =========
</TABLE>
- ---------------
(1) The interest portion of annual rentals is estimated to be one-third of such
rentals.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
USL Capital Corporation:
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our opinion dated January 28, 1994, appearing in your
annual report on Form 10-K and to the reference to us under the heading
"Experts" in the prospectus which is part of this Registration Statement.
COOPERS & LYBRAND L.L.P.
San Francisco, California
December 13, 1994
<PAGE> 1
Securities Act of 1933 File No.
--------
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
--------------
_________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
________________
USL CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
94-1360891
(I.R.S. Employer Identification No.)
733 FRONT STREET
SAN FRANCISCO, CA
(Address of principal executive offices)
94111
(Zip Code)
_________________
DEBT SECURITIES
(Title of the indenture securities)
===============================================================================
<PAGE> 2
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, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect . (See Exhibit T-1 (Item 12), Registration
No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No.2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437.)
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit
T-1 (Item 12(a)), Registration No. 22-26320.)
5. -- A copy of each indenture referred to in Item 4, if the obligor
is in default. (Not applicable.)
*6. -- The consents of United States institutional trustees required
by Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to
which there have been no amendments or changes.
___________________
1.
<PAGE> 3
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
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 New York, and the
State of New York, on the 21st day of November, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
/s/ Valerie Dunbar
____________________________________
By: Valerie Dunbar, Second Vice President
2.
<PAGE> 4
EXHIBIT 7
---------
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of business on June
30, 1994, published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
CHARTER NUMBER 2370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . . $ 4,956,205
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,138,639
Held to maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926,935
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,934,082
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in
IBFs:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,032,000
Securities purchased under agreements to resell . . . . . . . . . . . . . . . . 0
Loans and lease financing receivable:
Loans and leases, net of unearned income . . . . . . . . . . . $ 49,508,041
LESS: Allowance for loan and lease losses . . . . . . . . . . 1,087,962
LESS: Allocated transfer risk reserve . . . . . . . . . . . . 0
-------------
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . 48,420,079
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . 18,856,428
Premises and fixed assets (including capitalized leases). . . . . . . . . . . . . . 1,653,111
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 822,608
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . 57,230
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . 814,608
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378,800
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,400,477
-------------
TOTAL ASSETS $ 95,391,202
=============
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,434,771
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . $ 11,442,433
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . 18,992,338
-------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . 33,399,860
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . $ 2,858,541
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . 30,541,319
-------------
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,134,731
Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . 69,783
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . 25,000
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,831,327
Other borrowed money:
With original maturity of one year or less . . . . . . . . . . . . . . . . . . 2,678,498
With original maturity of more than one year . . . . . . . . . . . . . . . . . 167,944
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . 40,965
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . 825,499
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . 2,360,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,681,805
-------------
TOTAL LIABILITIES 88,650,183
-------------
Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . 0
Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913,113
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,614,743
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . 1,226,618
Net unrealized holding gains (losses) on available-for-sale securities. . . . . . . (24,868)
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . 11,413
-------------
TOTAL EQUITY CAPITAL 6,741,019
-------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL $ 95,391,202
=============
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
