As filed with the Securities and Exchange Commission on September 17, 1998
Registration No. 333-59593
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTERNATIONAL SPECIALTY PRODUCTS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0376469
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
818 WASHINGTON STREET
WILMINGTON, DELAWARE 19801
(302) 428-0847
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive office)
RICHARD A. WEINBERG, ESQ.
C/O ISP MANAGEMENT COMPANY, INC.
1361 ALPS ROAD
WAYNE, NEW JERSEY 07470
(973) 628-3000
(Name, address, including zip code, and telephone
number, including area code, of agent forservice)
With a copy to:
STEPHEN E. JACOBS, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"), other than securities offered only
in connection with dividend or interest reinvestment plans, please check the
following box: [ X ]
NYFS01...:\01\47201\0001\2011\PRO7168N.31G
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If this Form is filed to register additional securities for an offering
pursuant to Rule 462(c) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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, AS AMENDED, 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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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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SUBJECT TO COMPLETION, DATED SEPTEMBER 17, 1998
PROSPECTUS
$1,000,000,000
INTERNATIONAL SPECIALTY PRODUCTS INC.
DEBT SECURITIES
COMMON STOCK
International Specialty Products Inc., a Delaware corporation (the
"Company"), may offer from time to time, in one or more series, (i) debt
securities (the "Debt Securities"), in amounts, at prices and on terms to be
determined by market conditions at the time of offering or (ii) shares of common
stock, $0.01 par value per share ("Common Stock"), in amounts, at prices and on
terms to be determined by market conditions at the time of offering. The Debt
Securities and Common Stock are referred to herein collectively as the
"Securities." The Company, formerly known as ISP Holdings Inc., is the successor
to International Specialty Products Inc. ("Old ISP"). Old ISP merged with and
into the Company on July 15, 1998. In connection with the merger, ISP Holdings
Inc. changed its name to International Specialty Products Inc.
The form in which the Securities are to be issued, their specific
designation, aggregate principal amount or aggregate initial offering price,
maturity, if any, rate and times of payment of interest or dividends, if any,
redemption, conversion, and sinking fund terms, if any, voting or other rights,
if any, exercise price and detachability, if any, and other specific terms will
be set forth in a Prospectus Supplement (the "Prospectus Supplement"), together
with the terms of the offering of such Securities. Any such Prospectus
Supplement will also contain information, as applicable, about material United
States Federal income tax considerations relating to the particular Securities
offered thereby.
The Debt Securities will be issued in bearer or registered form, including
in the form of global securities, unless otherwise set forth in the Prospectus
Supplement.
The Company's Common Stock is listed on the New York Stock Exchange ("NYSE")
under the symbol "ISP." Any Prospectus Supplement will also contain information,
where applicable, as to any other listing on a securities exchange of the
Securities covered by such 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 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 Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company, together with its agents or underwriters, if any, reserves the right to
accept or reject in whole or in part any proposed purchase of Securities to be
made directly or through agents or underwriters. If any agents or underwriters
are involved in the sale of any Securities, the names of such agents or
underwriters and any applicable fees, commissions or discounts and the net
proceeds to the Company will be set forth in the applicable Prospectus
Supplement. See "Plan of Distribution." This Prospectus may not be used to
consummate any sale of Securities unless accompanied by a Prospectus Supplement.
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____ __, 1998.
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IN CONNECTION WITH AN OFFERING OF THE SECURITIES, CERTAIN PERSONS
PARTICIPATING IN SUCH OFFERING MAY ENGAGE IN TRANSACTIONS THAT STABILIZE,
MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES, INCLUDING
OVERALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS AND THE
IMPOSITION OF PENALTY BIDS. SEE "PLAN OF DISTRIBUTION."
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SECURITIES BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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AVAILABLE INFORMATION
THE COMPANY IS SUBJECT TO THE INFORMATIONAL REQUIREMENTS OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), AND IN ACCORDANCE
THEREWITH FILES REPORTS, PROXY STATEMENTS AND OTHER INFORMATION WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION"). SUCH REPORTS, PROXY
STATEMENTS AND OTHER INFORMATION CAN BE INSPECTED AND COPIED AT THE OFFICES OF
THE COMMISSION AT ROOM 1024, JUDICIARY PLAZA, 450 FIFTH STREET, N.W., WASHINGTON
D.C. 20549, AS WELL AS AT THE FOLLOWING REGIONAL OFFICES OF THE COMMISSION: THE
CITICORP CENTER, 500 WEST MADISON STREET, SUITE 1400, CHICAGO, ILLINOIS 60661
AND SEVEN WORLD TRADE CENTER, SUITE 1300, NEW YORK, NEW YORK 10048. COPIES OF
SUCH MATERIAL CAN ALSO BE OBTAINED FROM THE PUBLIC REFERENCE SECTION OF THE
COMMISSION AT 450 FIFTH STREET, N.W., WASHINGTON, D.C. 20549 AT PRESCRIBED
RATES. IN ADDITION, THE COMMISSION MAINTAINS A WORLD WIDE WEB SITE ON THE
INTERNET AT HTTP://WWW.SEC.GOV THAT CONTAINS REPORTS, PROXY AND INFORMATION
STATEMENTS AND OTHER INFORMATION REGARDING REGISTRANTS THAT FILE ELECTRONICALLY
WITH THE COMMISSION. SUCH REPORTS, PROXY STATEMENTS AND OTHER INFORMATION
CONCERNING THE COMPANY ARE ALSO FILED WITH THE NYSE, AS A RESULT OF THE LISTING
OF COMMON STOCK OF THE COMPANY ON THE NYSE, AND MAY BE INSPECTED AT ITS OFFICES
AT 20 BROAD STREET, NEW YORK, NEW YORK 10005.
THE COMPANY HAS FILED WITH THE COMMISSION A REGISTRATION STATEMENT ON FORM
S-3 (TOGETHER WITH ALL AMENDMENTS AND EXHIBITS THERETO, THE "REGISTRATION
STATEMENT") UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
WITH RESPECT TO THE SECURITIES. THIS PROSPECTUS, WHICH CONSTITUTES PART OF THE
REGISTRATION STATEMENT, DOES NOT CONTAIN ALL OF THE INFORMATION SET FORTH IN THE
REGISTRATION STATEMENT, CERTAIN PORTIONS OF WHICH HAVE BEEN OMITTED IN
ACCORDANCE WITH THE RULES AND REGULATIONS OF THE COMMISSION. STATEMENTS
CONTAINED IN THIS PROSPECTUS AS TO THE CONTENTS OF ANY CONTRACT OR OTHER
DOCUMENT ARE NOT NECESSARILY COMPLETE, AND IN EACH INSTANCE, REFERENCE IS MADE
TO THE COPY OF SUCH CONTRACT OR DOCUMENT FILED AS AN EXHIBIT TO THE REGISTRATION
STATEMENT, EACH SUCH STATEMENT BEING QUALIFIED IN ALL RESPECTS BY SUCH
REFERENCE. FOR FURTHER INFORMATION WITH RESPECT TO THE COMPANY, REFERENCE IS
MADE TO THE REGISTRATION STATEMENT.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission and are
incorporated herein by reference:
(a) The Annual Report on Form 10-K of Old ISP, as amended, for the
fiscal year ended December 31, 1997;
(b) The Quarterly Report on Form 10-Q of Old ISP for the quarter
ended March 29, 1998;
(c) The Current Report on Form 8-K of Old ISP filed on April 1,
1998;
(d) The Proxy Statement of Old ISP on Schedule 14A filed on June
16, 1998;
(e) The Annual Report on Form 10-K of the Company for the fiscal
year ended December 31, 1997;
(f) The Quarterly Report on Form 10-Q of the Company for the
quarter ended March 29, 1998;
(g) The Current Report on Form 8-K of the Company filed on August
5, 1998; and
(h) The Quarterly Report on Form 10-Q of the Company for the
quarter ended June 28, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the initial filing with the Commission of the
Registration Statement of which this Prospectus is a part and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus. Subject to the
foregoing, all information appearing in this Prospectus is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the request of such person, a copy of any or all
the documents incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests for such documents should be directed to the Vice
President of Investor Relations, International Specialty Products Inc., 1361
Alps Road, Wayne, New Jersey, 07470, telephone number (973) 628-3463.
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FORWARD-LOOKING STATEMENTS
This Prospectus and accompanying Prospectus Supplement (including the
documents incorporated by reference herein or therein) may contain certain
"forward-looking statements" intended to qualify for the safe harbor from
liability established by the Private Securities Litigation Reform Act of 1995.
These forward-looking statements generally can be identified by use of
statements that include phrases such as the Company or its management
"believes," "expects," anticipates," "intends," "plans," "foresees" or other
words or phrases of similar import. Similarly, statements that describe the
Company's objectives, plans or goals also are forward-looking statements. All
such forward-looking statements are subject to certain risks and uncertainties
that could cause actual results to differ materially from those contemplated by
the relevant forward-looking statement. For
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discussion of such risks, uncertainties and assumptions, see the applicable
Prospectus Supplement pertaining to any Securities offered hereunder and/or in
the periodic reports of the Company. Stockholders, potential investors and other
readers are urged to consider these factors carefully in evaluating the
forward-looking statements. The forward-looking statements included herein are
made only as of the date of this Prospectus and the Company undertakes no
obligation to publicly update such forward-looking statements to reflect
subsequent events or circumstances.
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THE COMPANY
The Company is a leading multinational manufacturer of specialty
chemicals, mineral products and filter products.
The Company, incorporated in Delaware in 1996, operates its business
exclusively through 20 domestic subsidiaries, including ISP Chemicals Inc., ISP
Technologies Inc., ISP Van Dyk Inc., ISP Fine Chemicals Inc. and ISP Freetown
Fine Chemicals Inc. and 39 international subsidiaries. The address and telephone
number of the principal executive offices of the Company are 818 Washington
Street, Wilmington, Delaware 19801, (302) 428-0847.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges was 2.78 for the first six months
ended June 28, 1998 and 2.43, 3.91, 4.05, 3.32 and 2.83 for the fiscal years
ended December 31, 1997, 1996, 1995, 1994 and 1993, respectively. For purposes
of these computations, earnings consist of income from continuing operations
before income taxes, minority interest and extraordinary items plus fixed
charges. Fixed charges consist of interest on indebtedness (including
amortization of debt issuance costs) plus that portion of lease rental expense
representative of interest (estimated to be one-third of lease rental expense).
USE OF PROCEEDS
Unless otherwise set forth in a Prospectus Supplement, the net proceeds
from the offering of the Securities will be used to refinance or repurchase
existing debt securities and for general corporate purposes, which may include
acquisitions, working capital and capital expenditures. When a particular series
of Securities is offered, the Prospectus Supplement relating thereto will set
forth the Company's intended use for the net proceeds received from the sale of
such Securities.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities may be offered from time to time by the Company as
senior debt of the Company and will be issued under an Indenture (the
"Indenture") to be entered into between the Company and the party to be named in
a Prospectus Supplement as trustee under the Indenture (the "Trustee"). The Debt
Securities offered by this Prospectus and the accompanying Prospectus Supplement
are referred to herein as the "Debt Securities." The form of the Indenture is
filed as an exhibit to the Registration Statement. See "Available Information."
The terms of the Indenture are also governed by certain provisions of the Trust
Indenture Act of 1939, as amended (the "TIA"). The following summary of certain
material provisions of the Debt Securities does not purport to be complete and
is qualified in its entirety by reference to the Indenture. All capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Indenture. For a summary of certain definitions used in this
section, see "Certain Definitions" below.
GENERAL
The Indenture will provide for the issuance of Debt Securities in series
up to the aggregate amount from time to time authorized by the Company for each
series. A Prospectus Supplement will set forth the following terms of and
information relating to the Debt Securities (to the extent such terms are
applicable to such Debt Securities) in respect of which this Prospectus is
delivered: (1) the designation of such Debt Securities; (2) the classification
of such Securities as Senior Debt Securities; (3) the aggregate principal amount
(or principal amount at maturity) of such Debt Securities; (4) the date or dates
on which such Debt Securities will mature; (5) the rate or rates, if any (which
may be fixed or variable), per annum, at which such Debt Securities will bear or
accrete interest, or the method of determination of such rate or rates; (6) the
times and places at which such interest, if any, will be payable; (7) provisions
for sinking, purchase or other analogous funds, if any; (8) the date or dates,
if any, after which such Debt Securities may be redeemed at the option of the
Company or of the holder and the
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redemption price or prices; (9) the date or the dates, if any, after which such
Debt Securities may be converted or exchanged at the option of the holder into
or for shares of Common Stock or other securities of the Company and the terms
for any such conversion or exchange; and (10) any other specific terms of
(including covenants, if any, applicable to) a series of Debt Securities.
Principal, premium, if any, and interest, if any, will be payable and the Debt
Securities offered hereby will be transferable, at the corporate trust office of
the Trustee's agent, provided that payment of interest, if any, may be made at
the option of the Company by check mailed to the address of the person entitled
thereto as it appears in the Security Register.
If a Prospectus Supplement specifies that a series of Debt Securities is
denominated in a currency or currency unit other than United States dollars,
such Prospectus Supplement shall also specify the denomination in which such
Debt Securities will be issued and the coin or currency in which the principal,
premium, if any, and interest, if any, on such Debt Securities will be payable,
which may be United States dollars based upon the exchange rate for such other
currency or currency unit existing on or about the time a payment is due.
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be sold at a substantial discount from their stated
principal amount at maturity.
The Debt Securities may be issued in registered or bearer form and, unless
otherwise specified in a Prospectus Supplement, in denominations of $1,000 and
$5,000, respectively, and integral multiples thereof. Debt Securities may be
issued in book-entry form, without certificates. Any such issue will be
described in the Prospectus Supplement relating to such Debt Securities. No
service charge will be made for any transfer or exchange of the Debt Securities,
but the Company or the Trustee may require payment of a sum sufficient to cover
any tax or other government charge payable in connection therewith.
Material United States federal income tax consequences specifically
applicable to any Debt Securities and/or their plan of distribution will be
described in the Prospectus Supplement relating to such Debt Securities.
MERGER, CONSOLIDATION AND SALE OF ASSETS
The Indenture will provide that the Company shall not consolidate with or
merge into any other Person or sell, convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless: (1) the entity
formed by such consolidation or into which the Company is merged or the Person
which acquires by sale, conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety (A) shall be a
corporation, partnership, limited liability company or trust organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and (B) shall expressly assume, by an
indenture supplemental thereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the obligations of the Company for the
due and punctual payment of the principal of, premium, if any, and interest, if
any, on all the Debt Securities and the performance and observance of every
covenant of the Indenture on the part of the Company to be performed or
observed; (2) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and (3) the Company or
such Person shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with the "Merger,
Consolidation and Sale of Assets" provisions of the Indenture and that all
conditions precedent provided for relating to such transaction have been
satisfied. These provisions apply only to a merger or consolidation in which the
Company is not the surviving corporation and to sales, conveyances, leases and
transfers by the Company as transferor or lessor.
The Indenture will further provide that upon consolidation by the Company
with any other Person or merger by the Company into any other Person or any
sale, conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any Person in accordance with the preceding
paragraph, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and
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power of, the Company under the Indenture with the same effect as if such
successor Person had been named as the Company therein, and in the event of any
such conveyance or transfer, the Company, as applicable, except in the case of a
lease, shall be discharged of all obligations and covenants under the Indenture
and the Debt Securities and the coupons, if any.
EVENTS OF DEFAULT
The following will be "Events of Default" under the Indenture with respect
to Debt Securities of any series:
(1) default in the payment of interest on any Debt Securities of that
series or any related coupon, when such interest or coupon becomes due
and payable, and continuance of such default for a period of 60 days;
or
(2) default in the payment of the principal of (or premium, if any, on)
any Debt Securities of that series at its Maturity or upon any
redemption and such default shall continue for five or more days; or
(3) default in the deposit of any sinking fund payment when and as due
pursuant to the terms of the Debt Securities of that series and the
Indenture and such default shall continue for a period of 60 days; or
(4) default in the performance, or breach, of any covenant or warranty in
the Indenture (other than a default in the performance, or breach, of
a covenant or warranty which is specifically dealt with elsewhere
under the "Events of Default" section), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 33-1/3% in
principal amount (or principal amount at maturity, as the case may be)
of all Outstanding Debt Securities of the affected 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"
thereunder; or
(5) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under the
Federal Bankruptcy Code or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company, or of any substantial part
of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company, and the continuance of any
such decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by the Company to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by the Company of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any
other applicable federal or state law, or the consent by the Company,
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company, or of any substantial part of the
property of the Company, or the making by it of an assignment for the
benefit of creditors; or
(7) any other Event of Default provided with respect to Debt Securities of
that series.
The failure to redeem any Debt Security subject to a Conditional
Redemption is not an Event of Default if any event on which such redemption is
so conditioned does not occur and is not waived before the scheduled redemption
date.
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If an Event of Default described in clause (1), (2), (3), (4) or (7) above
with respect to Debt 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 33-1/3% in principal amount (or principal amount at maturity, as
applicable) of the Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Debt Securities of that series and
interest accrued thereon 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 portion thereof) shall
become immediately due and payable. If an Event of Default described in clause
(5) or (6) above occurs and is continuing, then the principal amount and
interest accrued thereon of all the Debt Securities shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to Debt
Securities of any series (or of all series, as the case may be) has been made,
the Holders of a majority in principal amount (or principal at maturity, as the
case may be) of the Outstanding Debt Securities of that series (or of all
series, as the case may be), by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of acceleration. No such rescission shall
affect any subsequent default or impair any right consequent thereto.
Except as otherwise provided in the Indenture, or any supplement thereto,
the Holders of not less than a majority in principal amount (or principal amount
at maturity, as the case may be) of the Outstanding Debt Securities of any
series may on behalf of the Holders of all the Debt Securities of such series
waive any past default described in clause (1), (2), (3), (4) or (7) of the
first paragraph of this section (or, in the case of a default described in
clause (5) or (6) of the first paragraph of this section, the Holders of not
less than a majority in principal amount (or principal amount at maturity, as
applicable) of all Outstanding Debt Securities may waive any such past default),
and its consequences, except a default (i) in respect of the payment of the
principal of (or premium, if any, on) or interest, if any, on any Debt Security
or any related coupon, or (ii) in respect of a covenant or provision which under
the Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default.
Except to enforce the right to receive payment of principal, premium, if
any, or interest, if any, on any Debt Security, no Holder of any Debt Security
of any series or any related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to the Indenture, or for the
appointment of a receiver or trustee, or for any other remedy thereunder, unless
(i) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Debt Securities of that series;
(ii) the Holders of not less than 33- 1/3% in principal amount (or the principal
amount at maturity, as the case may be) of the Outstanding Debt Securities of
that series in the case of any Event of Default under clause (1), (2), (3), (4)
or (7) of the first paragraph of this section, or, in the case of any Event of
Default described in clause (5) or (6) of the first paragraph of this section,
the Holders of not less than 33-1/3% in principal amount (or the principal
amount at maturity, as the case may be) of all Outstanding Debt Securities,
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee under the Indenture;
(iii) 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; (iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority or more in
principal amount (or the principal amount at maturity, as the case may be) of
the Outstanding Debt Securities of that series in the case of any Event of
Default described in clause (1), (2), (3), (4) or (7) of the first paragraph of
this section, or, in the case of any Event of Default described in clause (5) or
(6) of the first paragraph of this section,
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by the Holders of a majority or more in principal amount (or the principal
amount at maturity, as the case may be) of all Outstanding Debt Securities.
During the existence of an Event of Default, the Trustee is required to
exercise such rights and powers vested in it under the Indenture in good faith.
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 Trustee
under the Indenture is not under any obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable security or
indemnity. Subject to certain provisions concerning the rights of the Trustee,
with respect to the Debt Securities of any series, the Holders of not less than
a majority in principal amount (or the principal amount at maturity, as the case
may be) of the Outstanding Debt Securities of such 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 under the Indenture.
Within 90 days after the occurrence of any Default with respect to Debt
Securities of any series, the Trustee shall transmit in the manner and to the
extent provided in TIA Section 313(c), notice of such Default known to the
Trustee, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal of (or
premium, if any, on) or interest, if any, on any Debt Securities of such series,
or in the payment of any sinking fund installment with respect to Debt
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Debt Securities
of such series and any related coupons.
The Company is required to deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate of its compliance with all of
the conditions and covenants under the Indenture.
DEFEASANCE OR COVENANT DEFEASANCE OF THE INDENTURE
The Indenture will provide that the Company may, at its option and at any
time, terminate its obligations with respect to the Outstanding Debt Securities
of any series ("defeasance"). Such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Debt Securities and any related coupons, except for the following
which shall survive until otherwise terminated or discharged under the
Indenture: (A) the rights of Holders of such Outstanding Debt Securities and any
related coupons (i) to receive, solely from the trust fund described in the
Indenture, payments in respect of the principal of (and premium, if any, on) and
interest, if any, on such Debt Securities and any related coupons when such
payments are due, and (ii) to receive shares of Common Stock or other securities
from the Company upon conversion of any convertible Debt Securities issued
thereunder, (B) obligations of the Company to issue temporary Debt Securities,
register the transfer or exchange of any Debt Securities, replace mutilated,
destroyed, lost or stolen Debt Securities, maintain an office or agency for
payments in respect of the Debt Securities and, if the Company acts as its own
Paying Agent, hold in trust, money to be paid to such Persons entitled to
payment, and with respect to "additional amounts," as contemplated by the
Indenture, if any, on such Debt Securities as contemplated in the Indenture, (C)
the rights, powers, trusts, duties and immunities of the Trustee under the
Indenture and (D) the defeasance provisions of the Indenture. In addition, the
Company may, at its option and at any time, elect to terminate its obligations
with respect to certain covenants that are set forth in the Indenture and any
omission to comply with such obligations shall not constitute a Default or an
Event of Default with respect to the Debt Securities ("covenant defeasance").
In order to exercise either defeasance or covenant defeasance:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee, 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 Debt Securities and any related
coupons, (A) money in an amount (in such currency in which such Debt
Securities and any related coupons are
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then specified as payable at Stated Maturity), or (B) U.S. Government
Obligations applicable to such Debt Securities (determined on the
basis of the currency in which such Debt Securities are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment of principal (including any premium) and interest, if any,
under such Debt Securities and any related coupons, money in an amount
or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants to pay
and discharge (i) the principal of (and premium, if any, on) and
interest, if any, on the Outstanding Debt Securities and any related
coupons on the Stated Maturity (or any Redemption Date selected by the
Company, if applicable) of such principal (and premium, if any) or
installment of interest, if any, and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Debt
Securities and any related coupons on the day on which such payments
are due and payable in accordance with the terms of the Indenture and
of such Debt Securities and any related coupons; provided that the
Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such Government Obligations to said payments with
respect to such Debt Securities and any related coupons. Before such a
deposit, the Company may give to the Trustee, in accordance with the
redemption provisions in the Indenture, a notice of its election to
redeem all or any portion of such Outstanding Debt Securities at a
future date in accordance with the terms of the Debt Securities of
such series and the redemption provisions of the Indenture, which
notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing;
(2) such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, the Indenture;
(3) in the case of a covenant defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of
the Outstanding Debt Securities and any related coupons 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;
(4) such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations in
connection therewith pursuant to the Indenture; and
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent under the Indenture to either defeasance or
covenant defeasance, as the case may be, have been satisfied.
SATISFACTION AND DISCHARGE
The Indenture shall upon Company Request cease to be of further effect
with respect to any series of Debt Securities (except as to any surviving rights
of registration of transfer or exchange of Debt Securities of such series herein
expressly provided for and the obligation of the Company to pay any "additional
amounts," as contemplated by the Indenture) and the Trustee shall execute proper
instruments acknowledging satisfaction and discharge of the Indenture as to such
series when:
(1) either (A) all Debt Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Debt Securities in
bearer form surrendered for exchange for "registered securities" and
maturing after such exchange, whose surrender is not required or has
been waived, as provided in the Indenture, (ii) Debt Securities and
coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid, as provided in the Indenture, (iii)
coupons appertaining to Debt Securities called for redemption and
maturing after the relevant redemption date, whose surrender has been
waived, as
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provided in the Indenture, and (iv) Debt Securities and coupons of
such series for whose payment money has theretofore been deposited in
trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company, as provided
in the Indenture) have been delivered to the Trustee for cancellation;
or
(B) all Debt Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one year,
or (iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements reasonably
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 (B)(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, in the currency in which the Debt
Securities of such series are payable or in U.S. Government
Obligations, sufficient to pay and discharge the entire indebtedness
on such Debt Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest, if any, to
the date of such deposit (in the case of Debt 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 provided for
relating to the satisfaction and discharge of the Indenture as to such series
have been satisfied.
AMENDMENTS AND WAIVERS
The Indenture will provide that at any time and from time to time, the
Company and the Trustee may, without the consent of any holder of Debt
Securities, enter into one or more indentures supplemental thereto for certain
specified purposes, including, among other things, to (i) cure ambiguities,
defects or inconsistencies, or to make any other provisions with respect to
questions or matters arising under the Indenture; (ii) effect or maintain the
qualification of the Indenture under the TIA; (iii) secure any Debt Securities;
(iv) add covenants for the protection of the holders of Debt Securities; (v)
establish the forms or terms of Debt Securities of any series; (vi) make any
other change that does not adversely affect in all material respects the rights
under the Indenture of the holders of Debt Securities thereunder; (vii) add any
Guarantee; (viii) evidence the acceptance of appointment by a successor trustee
and (ix) evidence the succession of another person to the Company and the
assumption by any such successor of the obligations of the Company in accordance
with the Indenture and the Debt Securities. Other amendments and modifications
of the Indenture or the Debt Securities may be made by the Company and the
Trustee with the consent of the holders of not less than a majority of the
aggregate principal amount (or principal amount at maturity) of all of the then
Outstanding Debt Securities of any series; provided, however, that no such
modification or amendment may, without the consent of the holder of each
Outstanding Debt Security affected thereby, (1) change the Stated Maturity of
the principal of, or any installment of interest, if any, on, any Debt 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 any "additional amounts" contemplated by the Indenture (except as
contemplated and permitted by certain provisions of the Indenture), 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 the Indenture or the amount thereof provable in bankruptcy pursuant
to the Indenture, or adversely affect, after the event giving rise to any right
of repayment shall have occurred, any right of repayment at the option of any
Holder of any Debt Security, or change any place of payment described in the
Indenture where, or the currency in which, any Debt Security or any premium or
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 at the option of the Holder, on or after the
redemption date or repayment date, as the case may be), or adversely affect any
right to convert or exchange any Debt Securities as may be provided pursuant to
the Indenture, or (2) reduce the percentage in principal amount of the
Outstanding Debt Securities of
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any series, the consent of whose Holders is required for any such supplemental
indenture, for any waiver of compliance with certain provisions of the Indenture
or certain defaults thereunder and their consequences provided for in the
Indenture.
SENIOR DEBT
The Debt Securities and coupons appertaining thereto will rank pari passu
with all other unsecured and unsubordinated Debt of the Company.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York. The Indenture is subject to
the provisions of the TIA that are required to be a part thereof and shall, to
the extent applicable, be governed by such provisions.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Stock" means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Company Request" means a written request or order signed in the name of
the Company by its Chief Executive Officer, its President, its Chief Financial
Officer, any Vice President, its Treasurer or any Assistant Treasurer, its
Secretary or any Assistant Secretary and delivered to the Trustee.
"Conditional Redemption" means a redemption pursuant to a notice of
redemption that provides that it is subject to the occurrence of any event
before the date fixed for such redemption as described in such notice of
redemption.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term
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"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Holder" means a Person in whose name a Debt Security is registered in the
Security Register.
"Maturity," when used with respect to any Debt Securities, means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as provided therein or in the Indenture, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption, notice
of option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President, the
Treasurer or any Assistant Treasurer and the Secretary or any Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount at maturity thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
the Indenture.
"Outstanding," when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under the Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Debt Securities, or portions thereof, for whose payment, money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Debt
Securities;
(iii) Debt Securities with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in the
Indenture; and
(iv) Mutilated, destroyed, lost or stolen Debt Securities which have
become or are about to become due and payable which have been
paid pursuant to the Indenture or in exchange for or in lieu of
which other Debt Securities have been authenticated and delivered
pursuant to the Indenture, other than any such Debt Securities in
respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands the Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount (or principal amount at maturity) of Outstanding Debt
Securities have given any request, demand, authorization, direction, notice,
consent or waiver under the Indenture, and for the purpose of making the
calculations required by TIA Section 313, Debt Securities owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the
Company or any Affiliate of the Company.
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"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any,
on) or interest, if any, on any Debt Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Stated Maturity," when used with respect to any Debt Security or any
installment of principal thereof or interest, if any thereon, means the date
specified in such Debt Security as the fixed date on which the principal of such
Debt Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of determination a
Person, directly and/or indirectly through one or more Subsidiaries, owns more
than 50% of the Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which the Indenture was executed, except
that any supplemental indenture executed pursuant to the Indenture shall conform
to the requirements of the Trust Indenture Act as in effect on the date of
execution thereof.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers, trustees or individuals performing similar functions of a
Person (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
The Amended and Restated Certificate of Incorporation of the Company
authorizes 300,000,000 shares of Common Stock, par value $0.01 per share. The
holders of Common Stock are entitled to one vote for each share held by them on
all matters submitted for approval by the stockholders of the Company. The
holders of Common Stock do not have cumulative voting rights in the election of
directors. The holders of Common Stock are entitled to receive and to share
equally in dividends as may be declared from time to time by the Board of
Directors out of funds legally available therefor. In the event of liquidation,
dissolution or winding up of the Company, the holders of Common Stock are
entitled to receive, after payment of all its debts and liabilities and other
payments to holders of any Preferred Stock having priority rights, if any, all
of the assets of the Company available for distribution to the holders of Common
Stock. The Common Stock has no preemptive rights, conversion rights or other
subscription rights.
The transfer agent and registrar for the Common Stock is The Bank of New
York.
PREFERRED STOCK
The Amended and Restated Certificate of Incorporation of the Company
authorizes 20,000,000 shares of Preferred Stock, par value $0.01 per share. No
shares of Preferred Stock are outstanding as of the date of this Registration
Statement. The Board of Directors has the authority to issue, without any
stockholder action, the Preferred Stock in one or more series and to fix the
voting powers and the preferences and relative, participating,
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optional and other special rights of each such series and the qualifications,
limitations and restrictions thereof, if any, in each case which may differ from
those of any and all other series at any time outstanding.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby through agents,
underwriters, dealers or remarketing firms.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Securities in respect of which this Prospectus is delivered will
be named, and any commissions payable by the Company to such agent will be set
forth, in a Prospectus Supplement. Any such agent will be acting on a reasonable
efforts basis for the period of its appointment or, if indicated in the
applicable Prospectus Supplement, on a firm commitment basis. Agents may be
entitled under agreements which may be entered into with the Company to
indemnification by the Company against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
If any underwriters are utilized in any sale of the Securities in respect
of which this Prospectus is delivered, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the underwriters to make
resales of the Securities in respect of which this Prospectus is delivered to
the public. The underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for the Company in the ordinary course
of business.
If a dealer is utilized in any sale of the Securities in respect of which
the Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale. Dealers
may be entitled to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in accordance
with their terms, by one or more firms ("remarketing firms"), acting as
principals for their own accounts or as agents for the Company. Any remarketing
firm will be identified and the terms of its agreement, if any, with the Company
and its compensation will be described in the Prospectus Supplement. Remarketing
firms may be entitled under agreements which may be entered into with the
Company to indemnification by the Company, against certain civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for the Company in the ordinary course
of business.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
purchasers to purchase Debt Securities from the Company, at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject to only those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
LEGAL MATTERS
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The validity of the Securities offered hereby has been passed upon for the
Company by Weil, Gotshal & Manges LLP, New York, New York. Certain legal matters
in connection with offerings made by this Prospectus may be passed upon for any
underwriters, dealers or agents by counsel named in the applicable Prospectus
Supplement.
EXPERTS
The consolidated financial statements and schedules of the Company and Old
ISP for the year ended December 31, 1997, incorporated by reference herein, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated by
reference in reliance upon the authority of said firm as experts in giving said
reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance and distribution of the
securities being registered are estimated (other than with respect to the SEC
registration fee) to be as follows:
SEC registration fee ......................... $295,000
Accounting fees and expenses ................ 50,000
Legal fees and expenses ..................... 40,000
Miscellaneous................................. 25,000
---------
Total..................................... $410,000
- -----------------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
International Specialty Products Inc. (the "Registrant") is a Delaware
corporation. Subsection (b)(7) of Section 102 of the Delaware General
Corporation Law (the "DGCL") enables a corporation in its original certificate
of incorporation or an amendment thereto to eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for violations of the director's fiduciary duty, except (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL (providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
a director derived an improper personal benefit. Article Seventh of the Amended
and Restated Certificate of Incorporation of the Registrant provides that
directors and officers of the Registrant shall not be personally liable to the
corporation or its stockholders for monetary damages if a director or officer
acts in good faith and in a manner he reasonably believes to be in or not
opposed to the best interests of the Registrant and provides for indemnification
of the officers and directors of the Registrant to the full extent permitted by
applicable law.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding provided that such
director or officer acted in good faith in a manner reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding, provided further that such director or
officer has no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees)
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actually and reasonably incurred in connection with the defense or settlement of
such action or suit provided that such director or officer acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such director or officer shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that despite the adjudication of liability but
in view of all of the circumstances of the case, such director or officer is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145 further provides that (i) to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; and (ii) indemnification and advancement of expenses
provided for, by, or granted pursuant to, Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled. In
addition, Section 145 empowers the corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the 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-2
<PAGE>
ITEM 16. EXHIBITS.
Exhibit Number Exhibit Description
- -------------- -------------------
*1.1 Form of Common Stock Underwriting Agreement.
*1.2 Form of Debt Securities Purchase Agreement.
*4.1 Form of Indenture to be entered between the Company and a
trustee to be named.
*5 Opinion of Weil, Gotshal & Manges LLP.
*12 Statement regarding computation of ratio of earnings to
fixed charges.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in the
Opinion filed as Exhibit 5)
**24 Power of Attorney.
- -----------------------
* Filed herewith.
** Previously filed.
ITEM 17. UNDERTAKINGS.
(a) 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; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
II-3
<PAGE>
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-4
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended,
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
Amendment No. 1 to Registration Statement, to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Wayne, State of New
Jersey, on September 17, 1998.
INTERNATIONAL SPECIALTY PRODUCTS INC.
By: /s/ James P. Rogers
------------------------------------
Name: James P. Rogers
Title: Executive Vice President-Finance
Signature Title Date
* Chairman, September 17, 1998
- ------------------------ Chief Executive
Samuel J. Heyman Officer and Director
(Principal Executive Officer)
* President, Chief Operating September 17, 1998
- ------------------------ Officer and Director
Peter R. Heinze
* Vice President and Chief September 17, 1998
- ------------------------ Financial Officer
Randall R. Lay (Principal Financial and
Accounting Officer)
/s/ Charles M. Diker Director September 17, 1998
- ------------------------
Charles M. Diker
* Executive Vice President- September 17, 1998
- ------------------------ Corporate Development and
Carl R. Eckardt Director
* Director September 17, 1998
- ------------------------
Harrison J. Goldin
II-5
<PAGE>
* Director September 17, 1998
- ------------------------
Sanford Kaplan
/s/ Burt Manning Director September 17, 1998
- ------------------------
Burt Manning
* By: /s/ James P. Rogers
------------------------
James P. Rogers
Attorney-in-fact
II-6
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit Description
- -------------- -------------------
*1.1 Form of Common Stock Underwriting Agreement.
*1.2 Form of Debt Securities Purchase Agreement.
*4.1 Form of Indenture to be entered between the Company
and a trustee to be named.
*5 Opinion of Weil, Gotshal & Manges LLP.
*12 Statement regarding computation of ratio of earnings
to fixed charges.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in the
Opinion filed as Exhibit 5)
**24 Power of Attorney.
- ----------------------------
* Filed herewith.
** Previously filed.
II-7
EXHIBIT 1.1
INTERNATIONAL SPECIALTY PRODUCTS INC.
-------------------------------------
Shares */
Common Stock
($0.01 par value)
Form of Common Stock Underwriting Agreement
New York, New York
, 1998
[NAME OF MANAGING UNDERWRITER(S)]
As Representative(s) of the several Underwriters,
[ADDRESS OF MANAGING UNDERWRITER(S)]
Ladies and Gentlemen:
International Specialty Products Inc., a corporation organized under
the laws of the State of Delaware (the "Company"), proposes to sell to the
several underwriters named in Schedule I hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, _________ shares of
Common Stock, $0.01 par value per share (the "Common Stock") of the Company
(said shares to be issued and sold by the Company being hereinafter called the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to ____ additional shares of Common Stock
to cover over-allotments (the "Option Securities," and together with the
Underwritten Securities, the "Securities"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 (the "Incorporated Documents") which were filed under the
Exchange Act on or before the Effective Date of the Registration
1
*/Plus an option to purchase from International Specialty Products Inc. ____
- - additional shares to cover over-allotments.
NYFS01...:\01\47201\0041\2011\AGR8138L.25D
<PAGE>
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for the use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (Registration No. 333-59593) on Form S-3, including the related
Base Prospectus, for registration under the Act of the offering and sale
of the Securities. The Company may have filed one or more amendments
thereto, including a related Base Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one
of the following: either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of base prospectus) or (2) after the Effective Date of
such registration statement, pursuant to Rules 415 and 424(b)(2), (3) or
(5), a prospectus supplement to the form of prospectus included in such
registration statement. In the case of clause (2), the Company has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and the
Final Prospectus. As filed, such Final Prospectus shall contain all Rule
430A Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
2
<PAGE>
(b) On the Effective Date, and at all times subsequent thereto and
including the Closing Date and on any date on which Option Securities are
purchased, if such date is not the Closing Date (any such date, a
"Settlement Date"), and during such longer period as the Final Prospectus
may be required to be delivered in connection with sales by the
Underwriters or a dealer, and during such longer period until any
post-effective amendment to the Registration Statement becomes effective,
the Registration Statement (including any Rule 462 Registration Statement)
and the Final Prospectus (as amended or supplemented if the Company shall
have filed with the Commission an amendment or supplement thereto)
complied, and will comply, in all material respects with the applicable
provisions of the Act and did not, and will not, contain an 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 made
therein (in the case of the Base Prospectus, Preliminary Prospectus or
Final Prospectus, in light of the circumstances under which they were
made) not misleading. No representation and warranty, however, is made in
this paragraph (b) with respect to written information contained in or
omitted from the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished to the Company by or on behalf of you with respect to the
Underwriters and the plan of distribution of the Securities expressly for
use in connection with the preparation thereof.
(c) Each of the Incorporated Documents, when the same was first
filed with the Commission, complied in all material respects with the
applicable provisions of the Act and the Exchange Act and the regulations
promulgated thereunder, and any further documents so filed and
incorporated by reference will, when they are filed with the Commission,
comply in all material respects with the applicable provisions of the Act
and the Exchange Act and such regulations. None of such filed documents
when they were filed (or, if an amendment with respect thereto was filed,
when such amendment was filed), 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, in light of
circumstances under which they were made, not misleading, and no such
further document, when it is filed with the Commission, will contain an
untrue statement of a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
3
<PAGE>
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Final Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, or on the results of operations,
business or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect").
(e) Each significant subsidiary (as such term is defined in Rule 405
of the Regulations) (the "Significant Subsidiaries") of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Final Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify would not have, singly or in the aggregate, a Material
Adverse Effect. All of the issued and outstanding shares of capital stock
of each of the Significant Subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable and are owned by the
Company, directly or indirectly, and in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, stockholders'
agreements and voting trusts, other than as set forth in the Registration
Statement and the Final Prospectus. Except as set forth in the Final
Prospectus, there are no outstanding rights, subscriptions, warrants,
calls, options or other agreements of any kind to which the Company is a
party with respect to the capital stock of any Significant Subsidiary.
(f) All of the currently outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and nonassessable and were not issued in violation of or subject to any
preemptive rights. The shares of Common Stock of the Company to be
outstanding on the Closing Date, including the Securities, have been duly
authorized and, when
4
<PAGE>
issued (and, in the case of the Securities, delivered and sold in
accordance with the terms of this Agreement) will be validly issued, fully
paid and nonassessable, and will not have been issued in violation of or
be subject to any preemptive rights. Upon delivery of and payment for the
Securities in accordance with this Agreement, the Underwriters will
receive valid title to those of the Securities to be purchased by them
from the Company, free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders' agreements and voting
trusts. The Company has, as of the date hereof, and will have, as of the
Closing Date and the Settlement Date, if any, an authorized and
outstanding capitalization as set forth in the Registration Statement and
as shall be set forth in the Final Prospectus, both on an historical basis
and as adjusted to give effect to the offering of the Shares. The
Company's capital stock conforms to the description thereof set forth in
the Registration Statement and as shall be set forth in the Final
Prospectus.
(g) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the results of operations,
business or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Change"), (B) there have been no
transactions entered into by the Company or any of its Significant
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the condition, financial or otherwise, or to
the results of operations, business or business prospects of the Company
and its subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, except for regular quarterly
dividends, if any.
(h) The Company has the corporate power and authority to enter into
and perform its obligations under this Agreement, and to issue, sell and
deliver the Securities. This Agreement has been duly authorized, executed
and delivered by the Company.
(i) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
5
<PAGE>
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, the effect of which violation or
default in performance or observance, singly or in the aggregate, would
have a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, and the issuance and sale of the Securities
and the consummation of the transactions contemplated hereby and thereby
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Significant
Subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any of its Significant Subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets of
the Company or any of its Significant Subsidiaries is subject, or violate
any applicable law, administrative regulation or administrative or court
decree, in each case, the effect of which conflict, breach, default, lien,
charge, encumbrance or violation, singly or in the aggregate, would have a
Material Adverse Effect, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any of its
Significant Subsidiaries.
(j) Except as described in the Registration Statement and the Final
Prospectus, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending or, to
the knowledge of the Company, threatened against or affecting the Company
or any of its Significant Subsidiaries, which would, singly or in the
aggregate, result in any Material Adverse Change or which would materially
and adversely affect the consummation of this Agreement; all pending legal
or governmental proceedings to which the Company or any of its Significant
Subsidiaries is a party or of which any of their respective properties or
assets is the subject which are not disclosed in the Registration
Statement or the Final Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not material
to the condition, financial or otherwise, or to the results of operations,
business or business prospects of the Company and its Significant
Subsidiaries considered as one enterprise; and there have been no material
developments with respect to any action, suit or proceeding, whether or
not such action, suit or proceeding is described in the
6
<PAGE>
Registration Statement or the Final Prospectus, which, singly or in the
aggregate, would result in a Material Adverse Change.
(k) Arthur Andersen LLP, the accountants who certified the financial
statements and supporting schedules included or incorporated by reference
in the Registration Statement and the Final Prospectus, are independent
public accountants as required by the Act and the regulations promulgated
thereunder.
(l) The financial statements, including the notes thereto, included
in or incorporated by reference in the Registration Statement and the
Final Prospectus present fairly in all material respects the financial
position of the Company and its subsidiaries and of the Company's
predecessors as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and as shall be stated in the Final Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
(m) The pro forma financial information of the Company and its
subsidiaries and of the Company's predecessors included in or incorporated
by reference in the Final Prospectus presents fairly in all material
respects the information shown therein, and has been prepared on the basis
described in the Final Prospectus.
(n) Except as set forth in the Registration Statement or the Final
Prospectus, neither the Company nor any of its Significant Subsidiaries
has violated, or is in violation of, any foreign, federal, state or local
law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), nor any federal or state laws
relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which, in either case, singly or in
the aggregate, would result in any Material Adverse Change.
(o) Each of the Company and its Significant Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory
7
<PAGE>
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business; each of the Company
and its Significant Subsidiaries has fulfilled and performed all of its
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit, except, in any case, singly or in
the aggregate, where the failure to have such permits or fulfill and
perform such obligations would not have a Material Adverse Effect; such
permits contain no restrictions that are materially burdensome to the
Company or its Significant Subsidiaries.
(p) In the ordinary course of their business, the Company and its
Significant Subsidiaries conduct reviews of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Significant Subsidiaries, in the course of which they identify and
evaluate associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such reviews,
except as set forth in the Registration Statement or the Final Prospectus,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material Adverse
Effect.
(q) The Company is not now, nor after giving effect to the offering
and sale of the Securities and application of the net proceeds therefrom
as shall be described in the Final Prospectus under the caption "Use of
Proceeds" will it be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(r) Each Preliminary Prospectus filed pursuant to Rule 424 under the
Act complied when so filed in all material respects with the Act and the
regulations promulgated thereunder.
(s) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company (other than registration statements that have
8
<PAGE>
previously been filed) or to require the Company to include such
securities with the Securities registered pursuant to the Registration
Statement.
Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $___ per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to _______ Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised
in whole or in part at any time (but not more than once) on or before the
30th day after the date of the Final Prospectus upon written notice by the
Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the Settlement Date. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 a.m., New York City time,
on _______, 1998, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be
9
<PAGE>
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at
________________, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the Settlement Date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Final Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you
10
<PAGE>
reasonably object in writing, unless the Company shall conclude, upon the
advice of counsel, that any such amendment or supplement must be filed at
a time prior to obtaining your consent. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective pursuant to
Rule 430A, or filing of the Final Prospectus is otherwise required under
Rule 424(b), the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the
Representatives (1) when the Registration Statement, if not effective at
the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any 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 it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or
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effect such compliance and (3) supply any supplemented Final Prospectus to
you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available (within the meaning of Section 11(a) of the Act and Rule 158 of
the regulations thereunder) to its security holders and to the
Representatives an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158 of the regulations thereunder.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, a copy of a manually-signed Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; 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 that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, for a period of days following the Execution Time, offer,
sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company
or any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company) directly or indirectly, or announce the
offering of, any other shares
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of Common Stock or any securities convertible into, or exchangeable for,
shares of Common Stock; provided, however, that the Company may issue and
sell Common Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company (including any
Company stock fund utilized in connection with any employee benefit plan)
in effect at the Execution Time and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities; provided, however that nothing in
this paragraph (g) shall prevent the Company from establishing and
effecting transactions pursuant to a share repurchase program in
compliance with applicable law.
6. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase the Underwritten Securities
and the Option Securities, as the case may be, shall be subject to the accuracy,
in all material respects, of the representations and warranties on the part of
the Company contained herein as of the Execution Time, the Closing Date and any
Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m., New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m.,
New York City time, on such date or (ii) 9:30 a.m., New York City time, on
the Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 p.m., New York City
time, on such date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have
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<PAGE>
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) (i) The Company shall have requested and caused Weil, Gotshal &
Manges LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date (and any Settlement
Date, as the case may be) and addressed to the Representatives, to the
effect that:
(1) all of the currently outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and nonassessable and were not issued in violation of or
subject to any preemptive rights; the Securities have been duly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable and will not have been issued in
violation of or subject to any preemptive rights; the Securities are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange; and, except as set
forth in the Final Prospectus, no options, warrants or other rights
to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding;
(2) the Registration Statement has become effective under the
Act; any required filing of the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and
the Registration Statement and the Final Prospectus (other than the
financial statements and other financial information contained
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder;
and such counsel has no reason to believe that on the Effective Date
or at the Execution Time the Registration Statement contained any
untrue statement of a material fact or omitted
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<PAGE>
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus as of its date and on the Closing Date (or any
Settlement Date, as the case may be) included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(3) this Agreement has been duly authorized, executed and
delivered by the Company;
(4) the Company is not now, nor after giving effect to the
offering and sale of the Securities and the application of the net
proceeds therefrom as described in the Final Prospectus, will it be,
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended;
(5) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in
the manner contemplated in this Agreement and in the Final
Prospectus and such other approvals (specified in such opinion) as
have been obtained; and
(6) to our knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company (other than registration statements that have previously
been filed) or to require the Company to include such securities
with the Securities registered pursuant to the Registration
Statement.
(ii) The Company shall have requested and caused, Richard A.
Weinberg, Esq., Executive Vice President and General Counsel of the
Company, to have furnished to the Representatives his opinion dated the
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<PAGE>
Closing Date (and any Settlement Date, as the case may be) and addressed
to the Representatives, to the effect that:
(1) each of the Company and its Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease, and
operate its properties and to conduct its business as described in
the Registration Statement and the Final Prospectus, and is duly
qualified as a foreign corporation to do business and is in good
standing in each jurisdiction in which qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would
not have a Material Adverse Effect;
(2) all of the issued and outstanding shares of capital stock
of each of the Significant Subsidiaries have been duly authorized
and validly issued and are fully paid and nonassessable and are
owned by the Company, directly or indirectly, and in each case free
and clear of all liens, security interests, pledges, charges,
encumbrances, stockholders' agreements and voting trusts, other than
as set forth in the Registration Statement and the Final Prospectus;
(3) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Company's capital stock conforms
in all material respects to the description thereof set forth in the
Registration Statement and as shall be set forth in the Final
Prospectus;
(4) to the knowledge of such counsel, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or, threatened against or affecting
the Company or any of its Significant Subsidiaries, which would,
singly or in the aggregate, result in any Material Adverse Change
and which is not disclosed in the Final Prospectus; and
(5) the issuance and sale of the Securities, and the
consummation of the transactions contemplated hereby or the
fulfillment of the terms hereof will not conflict with, constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company or
16
<PAGE>
any of its Significant Subsidiaries pursuant to, (i) the charter or
by-laws of the Company or any of its Significant Subsidiaries or
(ii) the terms of any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Company or
any of its Significant Subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of
the Company or any of its Significant Subsidiaries is subject, or
violate any applicable law, administrative regulation or
administrative or court decree, in each case, the effect of which
conflict, breach, default, lien, charge, encumbrance or violation,
singly or in the aggregate, would have a Material Adverse Effect.
In rendering their opinions required by subsections (b)(i) and (ii)
of this Section, Weil, Gotshal & Manges LLP and Mr. Weinberg may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of New York, Delaware corporate or the Federal laws of the United States,
to the extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and who are
reasonably satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
Weil, Gotshal & Manges LLP and Mr. Weinberg shall additionally state
that each such counsel (together with, in the case of Mr. Weinberg, attorneys on
his staff acting under his supervision) have participated in conferences with
directors, officers and other representatives of the Company, representatives of
the independent public accountants for the Company, representatives of the
Underwriters and representatives of counsel for the Underwriters, at which
conferences the contents of the Final Prospectus and related matters were
discussed, and, although such counsel has not independently verified and is not
passing upon and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Final Prospectus, no facts have come
to such counsel's attention which lead it or him to believe that the
Underwriters, on the date thereof or at the Closing Date (or the Settlement
Date, as the case may be), contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel expresses no view with respect to the financial statements and
related notes, the
17
<PAGE>
financial statement schedules and the other financial, statistical and
accounting data included in the Final Prospectus).
(c) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date (and any
Settlement Date, as the case may be) and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and a Senior or Executive Vice President of the Company, dated
the Closing Date (and any Settlement Date, as the case may be), to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus 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 Closing Date (and any Settlement Date, as the case may be) with
the same effect as if made on the Closing Date (and any Settlement
Date, as the case may be) and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date (and any
Settlement Date, as the case may be);
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus, there
has been no Material Adverse Change, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus.
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<PAGE>
(e) The Company shall have requested and caused Arthur Andersen LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date (and any Settlement Date, as the case may be), letters, dated
respectively as of the Execution Time and as of the Closing Date (and any
Settlement Date, as the case may be), in form and substance satisfactory
to the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and that they have
performed a review of the unaudited interim financial information of the
Company included in or incorporated by reference in the Final Prospectus
in accordance with Statement on Auditing Standards No. 71, and stating in
effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and pro forma financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review, in accordance with standards
established under Statement on Auditing Standards No. 71, of the
unaudited interim financial information, incorporated by reference
in the Registration Statement and the Final Prospectus; 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, directors and committees of the
Company and its Significant Subsidiaries; 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 December 31, 199_, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus do not comply as to form in all material
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<PAGE>
respects with applicable accounting requirements of the Act
and with the published rules and regulations of the Commission
with respect to financial statements included or incorporated
by reference in quarterly reports on Form l0-Q under the
Exchange Act; and said unaudited financial statements are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus or
(2) with respect to the period subsequent to ______,
199__, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the stockholders' equity
of the Company as compared with the amounts shown on the
________, 199__, consolidated balance sheet included or
incorporated by reference in the Registration Statement and
the Final Prospectus, or for the period from , 199__ to such
specified date there were any decreases, as compared with
________, 199__, except in all instances for changes or
decreases 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 Representatives.
(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 in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
set forth under the captions and in the Final Prospectus, the
information included or incorporated by reference in Items 1, 2, 6,
7 and 11 of the Company's Annual Report on Form 10-K, incorporated
by reference
20
<PAGE>
in the Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated by reference in the Company's Quarterly Reports on Form
l0-Q, incorporated by reference in the Registration Statement and
the Final Prospectus, [insert reference to any such information
appearing in a Current Report on Form 8-K incorporated by reference
in the Registration Statement and the Final Prospectus] agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus (the "pro forma
financial statements"); carrying out certain specified procedures;
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma adjustments
to the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe that
the pro forma financial statements do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of such statements.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its Significant Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement
21
<PAGE>
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Prior to the Closing Date (and any Settlement Date, as the case
may be), the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
(h) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto
from [each officer and director of the Company and [names of major
stockholders]] addressed to the Representatives.]
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 Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of _____________, counsel for the Underwriters, at
_________________________, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
(other than Section 6(c)), or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof other than in any case by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that
22
<PAGE>
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are 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 (in each case with
respect to the Preliminary Prospectus or Final Prospectus, in light of the
circumstances under which they were made), and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the
23
<PAGE>
statements set forth in [the last paragraph of the cover page regarding
delivery of the Securities, the legend in block capital letters on page
___ related to stabilization, syndicate covering transactions and penalty
bids and, under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of
the Securities, (ii) the sentences related to concessions and reallowances
and (iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids] in any Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof (but the failure so to notify the
indemnifying party shall not relieve it from any liability that it may
have under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture
by the indemnifying party of substantial rights and defenses). The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable
24
<PAGE>
time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Company and one or more of the Underwriters may be subject,
in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and by the Underwriters, on the
other, from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder). If such allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other, in
connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to
25
<PAGE>
information provided by the Company on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the 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 remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the 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
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any
26
<PAGE>
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or 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; provided that any such
suspension, limitation or minimum prices exists at the time of such termination,
(ii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. 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 any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ____________ General Counsel (fax no.: (212)
___________) and confirmed to the General Counsel, ____________, at
______________, Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to (973) 628-3196 and confirmed to it at 1361
Alps Road, Wayne, New Jersey 07470, Attention: Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and
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<PAGE>
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Base Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement relating to all offerings of
securities under the Registration Statement.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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<PAGE>
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Base Prospectus or, if no filing pursuant to Rule 424(b)
is required, shall mean the Base Prospectus relating to the Securities included
in the Registration Statement at the Effective Date.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus included in the Registration Statement at the
Effective Date that is used prior to the filing of the Final Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, as last amended prior to the Effective Date
including all exhibits and schedules thereto and all documents (including
financial statements, financial schedules and exhibits) incorporated therein by
reference and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing Date, shall
also mean such Rule 462(b) Registration Statement.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
29
<PAGE>
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 acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
INTERNATIONAL SPECIALTY PRODUCTS INC.
By:
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted as
of the date first above written.
[NAME OF MANAGING UNDERWRITER(S)]
By:
---------------------------
By:
----------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
30
<PAGE>
[Form of Lock-Up Agreement] EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER OF
INTERNATIONAL SPECIALTY PRODUCTS INC.]
International Specialty Products Inc.
-------------------------------------
Public Offering of Common Stock
-------------------------------
,19
[NAME OF MANAGING UNDERWRITER(S)]
As Representative[s] of the several Underwriters,
[ADDRESS OF MANAGING UNDERWRITER(S)]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between
International Specialty Products Inc., a Delaware corporation (the "Company"),
and [each of] you as representative[s] of a group of Underwriters named therein,
relating to an underwritten public offering of Common Stock, $0.01 par value per
share (the "Common Stock"), of
the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of the Representative(s), offer, sell, contract to sell, pledge or
otherwise dispose of, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities
31
<PAGE>
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of days after the date of
this Agreement, other than shares of Common Stock disposed of as bona fide gifts
approved by the Representative(s).
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR MAJOR
STOCKHOLDER]
[NAME AND ADDRESS OF OFFICER, DIRECTOR OR
MAJOR STOCKHOLDER]
32
<PAGE>
SCHEDULE I
----------
UNDERWRITERS NUMBER OF UNDERWRITTEN
- ------------ SECURITIES TO BE PURCHASED
--------------------------
Total.......................................................
---------
=========
33
EXHIBIT 1.2
INTERNATIONAL SPECIALTY PRODUCTS INC.
___% Senior Notes due ___
FORM OF DEBT SECURITIES PURCHASE AGREEMENT
------------------------------------------
[DATE]
Name(s) of Managing Underwriter
Address(es) of Managing Underwriter
Ladies and Gentlemen:
International Specialty Products Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters listed on Schedule I
hereto (the "Underwriters") $___________ aggregate principal amount at maturity
of its ___% Senior Notes due ____ (the "Firm Notes"). The Firm Notes are to be
issued pursuant to an indenture (the "Indenture") between the Company and
______________, as trustee (the "Trustee"). The Company also proposes to issue
and sell to the several Underwriters not more than $_________ aggregate
principal amount at maturity of the Company's ___% Senior Notes due __________
(the "Option Notes") to cover overallotments if, and to the extent, such option
is exercised pursuant to the right to purchase such Option Notes granted in
Section 2 hereof. The Firm Notes and the Option Notes are hereinafter referred
to as the "Notes."
The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has prepared and filed with
the Securities and Exchange Commission (the "Commission"), pursuant to the Act
and the rules and regulations promulgated by the Commission thereunder (the
"Regulations"), and the Trust Indenture Act of 1939, as amended (the "TIA"), a
registration statement on Form S-3 (Registration No. 333- 59593), including the
related Base Prospectus (as defined below) or prospectuses, covering the
registration of, among other securities, the Notes under the Act, and the
offering thereof from time to time in accordance with Rule 415 of the Act. Such
registration statement has been declared effective by the Commission. The
Company will prepare and file with the Commission, pursuant to Rules 415 and
424(b)(2), (3) or (5), a prospectus supplement to the form of prospectus
included in such registration statement reflecting the terms of the Notes and
the terms
1
NYFS01...:\01\47201\0041\2011\AGR7228A.36D
<PAGE>
of the offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Notes and the offering
thereof and, except to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time (as defined below) or, to the extent not completed
at the Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus (as defined below)) as the Company has advised you, prior
to the Execution Time, will be included or made therein.
The terms which follow, when used in this Agreement, shall have the
meanings indicated:
(i) "Effective Date" means the date that the Registration Statement
and any post-effective amendment or amendments thereto are declared
effective by the Commission.
(ii) "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
(iii) "Base Prospectus" shall mean the prospectus referred to above
contained in the Registration Statement relating to all offerings of
securities under the Registration Statement.
(iv) "Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus which describes the Notes and the
offering thereof and is used prior to filing of the Final Prospectus.
(v) "Final Prospectus" shall mean the prospectus supplement relating
to the Notes that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Base Prospectus.
(vi) "Registration Statement" shall mean the registration statement
referred to above, as last amended prior to the time the same was declared
effective by the Commission, including all exhibits and schedules thereto
and all documents (including financial statements, financial schedules and
exhibits) incorporated therein by reference.
2
<PAGE>
(vii) "Rule 415," "Rule 424" and "Regulation S-K" refer to such
rules or regulations under the Act.
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 that were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the effective date of the
Registration Statement, or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, except that
any such documents shall be deemed to be modified or superseded to the extent
that a statement contained in such Base Prospectus, Preliminary Prospectus or
Final Prospectus or in any other subsequently filed document that also is or is
deemed to be incorporated by reference therein modifies or supersedes such
statement (all such documents being hereinafter referred to as the "Incorporated
Documents").
The Company understands that the Underwriters propose to make a
public offering of their respective portion of the Notes on the terms and in the
manner set forth in the Final Prospectus, as soon as the Underwriters deem
advisable after this Agreement has been executed and delivered.
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, the
Underwriters as follows:
(i) The Registration Statement has become effective under the Act;
no stop order suspending the effectiveness of the Registration Statement
is in effect; and no proceedings for such purpose are pending before or,
to its knowledge, threatened by the Commission.
(ii) On the Effective Date, and at all times subsequent thereto and
including the Closing Date, or the Option Closing Date, if any (each as
defined below), and during such longer period as the Final Prospectus may
be required to be delivered in connection with sales by the Underwriters
or a dealer, and during such longer period until any post-effective
amendment to the Registration Statement becomes effective, the
Registration Statement (including any registration statement filed with
the Commission pursuant to Rule 462(b)) and the Final Prospectus (as
amended or supplemented if the Company shall have filed with the
Commission an amendment or supplement thereto) complied, and will
3
<PAGE>
comply, in all material respects with the applicable provisions of the Act
and the Regulations, and did not, and will not, contain an 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 made
therein (in the case of the Base Prospectus, Preliminary Prospectus or
Final Prospectus, in light of the circumstances under which they were
made) not misleading. No representation and warranty, however, is made in
this paragraph (a)(1)(ii) with respect to written information contained in
or omitted from the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished to the Company by or on behalf of you with respect to the
Underwriters and the plan of distribution of the Notes expressly for use
in connection with the preparation thereof.
(iii) Each of the Incorporated Documents, when the same was first
filed with the Commission, complied in all material respects with the
applicable provisions of the Act, the Regulations, the Exchange Act and
the regulations promulgated thereunder or the TIA, as applicable, and any
further documents so filed and incorporated by reference will, when they
are filed with the Commission, comply in all material respects with the
applicable provisions of the Act, the Exchange Act or the TIA and such
regulations. None of such filed documents when they were filed (or, if an
amendment with respect thereto was filed, when such amendment was filed),
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, in light of circumstances under which they were made,
not misleading, and no such further document, when it is filed with the
Commission, will contain an untrue statement of a material fact required
to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
(iv) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and as shall be described in the Final Prospectus; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of
4
<PAGE>
business, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or on the results
of operations, business or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect").
(v) Each significant subsidiary (as such term is defined in Rule
405 of the Regulations) (the "Significant Subsidiaries") of the Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and as
shall be described in the Final Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have, singly or in the
aggregate, a Material Adverse Effect. All of the issued and outstanding
shares of capital stock of each of the Significant Subsidiaries have been
duly authorized and validly issued and are fully paid and nonassessable
and are owned by the Company, directly or indirectly, and in each case
free and clear of all liens, security interests, pledges, charges,
encumbrances, stockholders' agreements and voting trusts ("Liens"), other
than as set forth in the Registration Statement and as shall be described
in the Final Prospectus. Except as may be set forth in the Final
Prospectus, there are no outstanding rights, subscriptions, warrants,
calls, options or other agreements of any kind to which the Company is a
party with respect to the capital stock of any Significant Subsidiary.
(vi) All of the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable. Except as may be set forth in the Final
Prospectus, there are no outstanding rights, subscriptions, warrants,
calls, options or other agreements of any kind to which the Company is a
party with respect to its capital stock.
(vii) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the results of operations,
business or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Change"), (B) there have been no
transactions entered into by the Company or any of its Significant
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the condition, financial or
5
<PAGE>
otherwise, or to the results of operations, business or business prospects
of the Company and its subsidiaries considered as one enterprise, and (C)
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock, except for regular
quarterly dividends, if any.
(viii) The Company has the corporate power and authority to enter
into and perform its obligations under this Agreement and the Indenture,
and to issue, sell and deliver the Notes. This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) The Notes have been duly authorized by the Company. The Notes
will, when executed, authenticated, issued and delivered in the manner
provided for in the Indenture and, when sold and paid for as provided in
this Agreement, constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding in equity or
at law). The Notes will conform in all material respects to the
description thereof which shall be contained in the Final Prospectus under
the heading "Description of Debt Securities."
(x) The Indenture has been duly authorized by the Company. The
Indenture will, when executed (assuming due execution by the Trustee),
constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding
in equity or at law). The Indenture will conform in all material respects
to the description thereof which shall be contained in the Final
Prospectus under the heading "Description of Debt Securities."
(xi) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of
6
<PAGE>
its Significant Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
of its Significant Subsidiaries is subject, the effect of which violation
or default in performance or observance, singly or in the aggregate, would
have a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the Indenture, and the issuance,
authentication and sale of the Notes and the consummation of the
transactions contemplated hereby and thereby will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its Significant Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, or violate any applicable law,
administrative regulation or administrative or court decree, in each case,
the effect of which conflict, breach, default, lien, charge, encumbrance
or violation, singly or in the aggregate, would have a Material Adverse
Effect, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any of its Significant
Subsidiaries.
(xii) Except as described in the Registration Statement and as shall
be described in the Final Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Significant Subsidiaries,
which would, singly or in the aggregate, result in any Material Adverse
Change or which would materially and adversely affect the consummation of
this Agreement or the performance by the Company of the Indenture or the
Notes; all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
properties or assets is the subject which are not disclosed in the
Registration Statement or shall be described in the Final Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the condition, financial or
otherwise, or to the results of operations, business or business prospects
of the Company and its Significant Subsidiaries considered as one
enterprise; and there have been no material developments with respect to
any action, suit or proceeding, whether or not such action, suit or
proceeding is described in the Registration Statement or shall be
described in the Final Prospectus, which, singly or in the aggregate,
would result in a Material Adverse Change.
7
<PAGE>
(xiii) Arthur Andersen LLP, the accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Final Prospectus are
independent public accountants as required by the Act and the Regulations.
(xiv) The financial statements, including the notes thereto,
included in or incorporated by reference in the Registration Statement and
the Final Prospectus present fairly in all material respects the financial
position of the Company and its subsidiaries and of the Company's
predecessors as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and as shall be stated in the Final Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
(xv) The pro forma financial information of the Company and its
subsidiaries and of the Company's predecessors included in or incorporated
by reference in the Final Prospectus presents fairly in all material
respects the information shown therein, and has been prepared on the basis
described in the Final Prospectus.
(xvi) The Indenture conforms in all material respects with the
requirements of the TIA applicable to indentures to be qualified
thereunder.
(xvii) Except as set forth in the Registration Statement or as shall
be described in the Final Prospectus, neither the Company nor any of its
Significant Subsidiaries has violated, or is in violation of, any foreign,
federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"), nor any
federal or state laws relating to discrimination in the hiring, promotion
or pay of employees nor any applicable federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which, in either case,
singly or in the aggregate, would result in any Material Adverse Change.
(xxviii) Each of the Company and its Significant Subsidiaries has
such permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation, under
any applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its business; each of the
Company and its Significant Subsidiaries has fulfilled and performed
8
<PAGE>
all of its obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, except, in any
case, singly or in the aggregate, where the failure to have such permits
or fulfill and perform such obligations would not have a Material Adverse
Effect; such permits contain no restrictions that are materially
burdensome to the Company or its Significant Subsidiaries.
(xix) In the ordinary course of their business, the Company and its
Significant Subsidiaries conduct reviews of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Significant Subsidiaries, in the course of which they identify and
evaluate associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such reviews,
except as set forth in the Registration Statement or the Final Prospectus,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material Adverse
Effect.
(xx) The Company is not now, nor after sale of the Notes to be sold
hereunder and application of the net proceeds from such sale as shall be
described in the Final Prospectus under the caption "Use of Proceeds" will
it be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xxi) Each Preliminary Prospectus filed pursuant to Rule 424 under
the Act complied when so filed in all material respects with the Act and
the Regulations.
(xxii) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company (other than registration statements that have
previously been filed) or to require the Company to include such
securities with the Debt Securities and Common Stock registered pursuant
to the Registration Statement.
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(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters pursuant to the
terms of this Agreement shall be deemed a representation and warranty by such
party to each Underwriter as to the matters covered thereby.
2. Purchase and Sale of the Notes; Delivery and Payment.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties of the Company herein set forth:
(i) the Company agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Company, at an aggregate
purchase price of _____% of the principal amount thereof (the "Purchase Price"),
the aggregate principal amount at maturity of the Firm Notes set forth opposite
such Underwriter's name on Schedule I hereto.
(ii) the Company hereby agrees to sell to the Underwriters, and the
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to an aggregate of $___________ principal amount at maturity of Option Notes
at the Purchase Price. Option Notes may be purchased solely for the purpose of
covering overallotments made in connection with the Firm Notes. If any Option
Notes are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the principal amount at maturity of Option Notes (subject to such
adjustments to eliminate the issuance of Option Notes in denominations other
than integral multiples of $1,000 principal amount at maturity as the
Underwriters may determine) that bears the same proportion to the principal
amount at maturity of Option Notes to be purchased as the principal amount at
maturity of Firm Notes set forth on Schedule I hereto opposite the name of such
Underwriter bears to the total principal amount at maturity of Firm Notes.
(b) Delivery and payment for the Notes shall be as follows:
(i) Delivery of and payment for the Firm Notes shall be made at the
offices of ___________________ at 10:00 A.M., New York City time, on
_______________, or such later date and time, if any, as the Underwriters and
the Company shall agree (such date and time of delivery and payment for the Firm
Notes being herein called the "Closing Date"). Delivery of the Firm Notes shall
be made to the Underwriters against payment by the Underwriters of the Purchase
Price by wire transfer of immediately available funds to an account specified by
the Company not less than two full business days in advance of the Closing Date.
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(ii) Delivery of and payment for any Option Notes to be sold by the
Company shall be made at the offices of __________________ at 10:00 A.M., New
York City time, on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
designated in a written notice from the Underwriters to the Company of their
determination to purchase an amount, specified in said notice, of Option Notes.
Delivery of the Option Notes shall be made to the Underwriters against payment
by the Underwriters of the purchase price thereof by wire transfer of
immediately available funds payable to the order of the Company. The time and
date of such payment are hereinafter referred to as the "Option Closing Date."
The notice of the determination to exercise the option to purchase Option Notes
and of the Option Closing Date may be given at any time within 30 days after the
date of this Agreement, but in any event shall be given at least two business
days prior to the Option Closing Date.
Certificates for the Firm Notes and the Option Notes shall be in
definitive or global form and registered in such names and in such denominations
as you, on behalf of the Underwriters, shall request in writing not less than
two full business days prior to the Closing Date or the Option Closing Date, as
the case may be. The Firm Notes and any Option Notes shall be delivered to you
on the Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer of the Notes to you duly
paid, against payment of the Purchase Price therefor.
3. Covenants of the Company. The Company covenants and agrees with
each of the Underwriters as follows:
(a) The Company will promptly advise you (on behalf of the
Underwriters), and confirm such advice in writing, (i) when any post-effective
amendment to the Registration Statement has become effective, (ii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement or Final Prospectus or for any additional information, (iii) of the
initiation or threatening of any proceedings for, or receipt by the Company of
any notice with respect to, the suspension of the qualification of the Notes for
sale in any jurisdiction or the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement and (iv) of receipt
by the Company or any representative of or attorney for the Company of any other
communications from the Commission relating to the Company, the Registration
Statement, any Preliminary Prospectus, the Final Prospectus or the transactions
contemplated by this Agreement. The Company will make every reasonable effort to
prevent the issuance of a stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and, if any such
stop order is issued, to obtain its lifting as soon as possible. The Company
will not file any amendment to the Registration Statement or any
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amendment of or supplement to the Final Prospectus before or after the Effective
Date to which the Representative shall reasonably object in writing after being
timely furnished in advance a copy thereof unless the Company shall conclude,
upon the advice of counsel, that any such amendment must be filed at a time
prior to obtaining such consent.
(b) During the period of time when a prospectus relating to the
Notes is required to be delivered hereunder or under the Act or the Regulations,
the Company shall comply with all requirements imposed upon it by the Act and
the TIA, as now existing or hereafter amended, and by the Regulations, as from
time to time in force, so far as may be necessary to permit the continuance of
sales of and dealings in the Notes as contemplated by the provisions thereof and
the Final Prospectus. If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event shall have occurred as a
result of which, in the judgment of the Company, you or your counsel, the Final
Prospectus as then amended or supplemented shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act, the TIA and the Regulations, the
Company shall notify the Representative promptly and prepare and file with the
Commission an appropriate post-effective amendment to the Registration Statement
or supplement to the Final Prospectus that will correct such untrue statement or
such omission and will use its best efforts to have any such post-effective
amendment to the Registration Statement declared effective as soon as possible.
(c) The Company shall promptly deliver to you a copy of a
manually-signed Registration Statement, including exhibits and all documents
incorporated by reference therein and all amendments thereto, and to each other
Underwriter and those persons (including counsel for the Underwriters) whom you
identify to the Company, such number of conformed copies of the Registration
Statement, each Preliminary Prospectus, the Final Prospectus, all amendments of
and supplements to such documents, if any, and all documents incorporated by
reference in the Registration Statement and the Final Prospectus or any
amendment thereof or supplement thereto, without exhibits, as you reasonably may
request.
(d) If and to the extent such qualification or registration may be
necessary, the Company shall cooperate with the Underwriters and their counsel
in connection with their efforts to qualify or register the Notes for sale under
the securities laws of such jurisdictions as you shall request, will execute
such applications and documents and furnish such information as may be
reasonably required for such purpose and will comply with such laws so as to
continue such qualification in effect for so long as may be required to complete
the distribution of the Notes;
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provided, however, that the Company shall not be required to qualify as a
foreign corporation in any jurisdiction or to file a consent to service of
process in any jurisdiction in any action other than one arising out of the
offering or sale of the Notes in such jurisdiction.
(e) The Company shall make generally available (within the meaning
of Section 11(a) of the Act and Rule 158 of the Regulations) to its security
holders and to you, in such numbers as you may reasonably request for
distribution to the Underwriters, as soon as practicable but in no event later
than 45 days after the end of the Company's fiscal quarter in which the first
anniversary of the Effective Date occurs, an earnings statement (which need not
be audited), covering a period of at least twelve consecutive full calendar
months commencing after the Effective Date, that satisfies the provisions of
Section 11(a) of the Act and Rule 158 of the Regulations.
(f) Prior to the Closing Date, the Company will furnish to the
Underwriters, as promptly as practicable after they have been prepared by the
Company, a copy of any unaudited interim consolidated financial statements of
the Company for any period subsequent to the period covered by the most recent
financial statements of the Company appearing in the Final Prospectus.
(g) The Company will use its best efforts in cooperation with the
Underwriters to permit the Notes to be eligible for clearance and settlement
through The Depository Trust Company.
(h) The Company shall apply the net proceeds from the sale of the
Notes as shall be set forth under the caption "Use of Proceeds" in the Final
Prospectus.
4. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (a) the
printing of the Registration Statement, the Base Prospectus, any Preliminary
Prospectus and the Final Prospectus and of each amendment or supplement thereto
and the delivery to the Underwriters of printed copies thereof, (b) the copying
of this Agreement and the Indenture, (c) the preparation, issuance and delivery
of the Notes to the Underwriters, including capital duties, stamp duties and
transfer taxes, if any, payable upon issuance of any of the Notes, the sale of
the Notes to the Underwriters and the fees and expenses of the Trustee, (d) the
fees and disbursements of its counsel and accountants, (e) the qualification of
the Notes under state securities laws in accordance with the provisions of
Section 3(d), including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of any blue sky survey and any legal investment survey, (f) the
printing and delivery to the Underwriters of
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copies of any blue sky survey and any legal investment survey, (g) the fee of
any filing for review of the offering with the NASD and (h) any out-of-pocket
expenses incurred by the Company or, with the Company's prior consent, on behalf
of the Company, on any "road show" or similar presentation to prospective
purchasers of Notes from the Underwriters. It is understood, however, that
except as provided in this Section, and Sections 6 and 7 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the Notes by
them, and any advertising expenses connected with any offers they may make.
5. Conditions of the Underwriters' Obligations. The obligations of
the several Underwriters to purchase and pay for the Notes, as provided herein,
shall be subject to (i) the accuracy, in all material respects, of the
representations and warranties of the Company herein contained, as of the date
hereof, as of the Closing Date and, with respect to Option Notes, the Option
Closing Date, (ii) the absence from any certificates, opinions, written
statements or letters furnished pursuant to this Section 5 to you or to counsel
of the Underwriters of any qualification or limitation not previously approved
in writing by you, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional obligations:
(a) Any post-effective amendments to the Registration Statement
required to be filed by the Company prior to the Closing Date shall have become
effective and no stop order suspending the effectiveness of the Registration
Statement or any such post-effective amendment shall have been issued and no
proceedings therefor shall have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(b) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date) (i) no proceeding under the Act or the Exchange Act shall
have been initiated or threatened by the Commission, or, with respect to the
filing of any Form 8-A under the Exchange Act, by any national securities
exchange; and all requests for additional information on the part of the
Commission shall have been complied with or such requests shall have been
otherwise satisfied; (ii) the rating assigned by any nationally recognized
securities rating agency to any debt securities, preferred stock or other
obligations of the Company as of the date hereof shall not have been lowered
since the execution of this Agreement and no such agency shall have publicly
announced since the Execution Time that it has under surveillance or review,
with possible negative implications, its rating of any of the debt securities or
preferred stock of the Company; and (iii) since the respective dates as of which
information is given in the Registration Statement and the Final Prospectus,
except as otherwise stated therein or contemplated thereby, there shall not have
been any material adverse change in, or any adverse development which materially
affects, the financial condition, results of operations, business or properties
of the Company and
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its subsidiaries considered as one enterprise, the effect of which is in your
reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or delivery of the Notes on the
terms and in the manner contemplated in the Final Prospectus.
(c) The Indenture shall have been duly executed and delivered by the
Company and the Trustee.
(d) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), the Final Prospectus shall not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), the Underwriters shall have received the favorable
opinion, dated as of the Closing Time, of:
(A) Weil, Gotshal & Manges LLP, counsel for the Company, in a form
reasonably satisfactory to the Underwriters, to the effect that:
(1) The Notes have been duly authorized by the Company for
issuance and when executed (and assuming the due authorization,
execution and delivery of the Indenture by the Trustee and the
execution, delivery and authentication of the Notes by the Trustee
in accordance with the Indenture) and delivered by the Company to
and paid for by the Underwriters in accordance with the terms of
this Agreement, will be duly executed, authenticated, issued and
delivered and will constitute the legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether a proceeding is sought in equity
or at law).
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(2) The Indenture has been duly authorized by the Company and,
when duly executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether a
proceeding is sought in equity or at law).
(3) The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the
Company.
(4) The statements made in the Final Prospectus under the
caption "Description of the Debt Securities," insofar as they
describe the provisions of the Notes and the Indenture, constitute
fair summaries thereof accurate in all material respects.
(5) The Company is not now, nor immediately after the sale of
the Notes to be sold hereunder and application of the net proceeds
from such sale (as described in the Final Prospectus under the
caption "Use of Proceeds") will be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(6) Neither the consummation of the transactions contemplated
hereby nor the sale, issuance, execution or delivery of the Notes,
nor the application of the proceeds therefrom (as shall be described
in the Final Prospectus under the caption "Use of Proceeds"), will
violate Regulation T (12 C.F.R. Part 220), U (12 C.F.R. Part 221) or
X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System; the Notes, and the use of the proceeds therefrom (as
shall be described in the Final Prospectus under the caption "Use of
Proceeds"), do not constitute "purpose credit" as such term is
understood under such Regulations; and
(B) Richard A. Weinberg, Esq., Executive Vice President and General
Counsel of the Company, in a form reasonably satisfactory to the
Underwriters, to the effect that:
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(1) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of State of Delaware
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and as shall be described in the Final
Prospectus. To the best of such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of ownership or leasing of property or
the conduct of business, except where the failure to so qualify
would not have a Material Adverse Effect.
(2) All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued, and are
fully paid and nonassessable. All of the issued and outstanding
shares of capital stock of each of the Significant Subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Company, directly or indirectly,
free and clear of all Liens, other than as set forth in the
Registration Statement and as shall be described in the Final
Prospectus.
(3) The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated
hereby and thereby will not conflict with, constitute a default
under or violate (or with respect to clause (y), impose or create
any lien upon any material property or assets of the Company or any
of its Significant Subsidiaries under) (x) any of the terms,
conditions or provisions of the respective certificates of
incorporation or by-laws of the Company or its Significant
Subsidiaries, (y) to the best of such counsel's knowledge, any of
the terms, conditions or provisions of any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or its Significant Subsidiaries is a
party or by which the Company or its Significant Subsidiaries is
bound, or to which any of the property or assets of the Company or
its Significant Subsidiaries is subject, except with respect to such
conflicts, defaults or violations which would not have a Material
Adverse Effect, or (z) any decree of any court or governmental
authority binding on the Company or its Significant Subsidiaries, of
which such counsel is aware, except those which would not have a
Material Adverse Effect.
(4) To the best of such counsel's knowledge, no default exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note,
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lease or other agreement or instrument to which the Company or its
Significant Subsidiaries is a party or is bound where such default
could have a Material Adverse Effect.
(5) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which could
reasonably be expected to have a Material Adverse Effect and which
are not disclosed in the Registration Statement or as shall be
described in the Final Prospectus.
(6) To the best of such counsel's knowledge, neither the
Company nor any of its Significant Subsidiaries is in violation of
(x) its charter, by-laws or other similar organizational documents
or (y) any franchise, license, permit, judgment, decree, order,
statute, rule or regulation of any federal or state court, or New
York, Delaware corporate or federal governmental authority, except
where such violation would not have a Material Adverse Effect.
In giving their opinions required by subsections (e)(A) and (B) of
this Section, Weil, Gotshal & Manges LLP and Mr. Weinberg shall additionally
state that each such counsel (together with, in the case of Mr. Weinberg,
attorneys on his staff acting under his supervision) have participated in
conferences with directors, officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and representatives of counsel for the
Underwriters, at which conferences the contents of the Final Prospectus and
related matters were discussed, and, although such counsel has not independently
verified and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final Prospectus
(except in the case of Weil, Gotshal & Manges LLP to the extent specified in
subsections (e)(A)(4)), no facts have come to such counsel's attention which
lead it or him to believe that the Underwriters, on the date thereof or at the
Closing Date (or the Option Closing Date, as the case may be), contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel expresses no view with respect
to the financial statements and related notes, the financial statement schedules
and the other financial, statistical and accounting data included in the Final
Prospectus).
References to the Final Prospectus in this subsection (c) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
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The opinion of Weil, Gotshal & Manges LLP described in subsection
(e)(A) and the opinion of Richard A. Weinberg, Esq. described in subsection
(e)(B) shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(f) The favorable opinion, dated as of the Closing Date (and, with
respect to the Option Notes, the Option Closing Date), of ___________, counsel
for the Underwriters, in form and substance satisfactory to the Underwriters.
(g) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date) there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Final Prospectus,
any Material Adverse Change, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a certificate of the
President of the Company and of an Executive Vice President of the Company,
dated as of the Closing Date (and, with respect to the Option Notes, the Option
Closing Date), to the effect that (i) there has been no Material Adverse Change,
(ii) the representations and warranties in Section l(a) are true and correct in
all material respects with the same force and effect as though expressly made at
and as of the Closing Date (and, with respect to the Option Notes, the Option
Closing Date), and (iii) the Company has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date (and, with respect to the Option
Notes, the Option Closing Date).
(h) On the date hereof and on the Closing Date (and, with respect to
the Option Notes, the Option Closing Date), the Underwriters shall have received
from Arthur Andersen LLP "cold comfort" letters dated such dates, in customary
form and substance and otherwise reasonably satisfactory to the Underwriters.
(i) At the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), counsel for the Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as contemplated
herein and related proceedings, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Notes and as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(j) On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded any of the debt securities of the Company or its
Significant Subsidiaries by any "nationally recognized statistical rating
organization," as that term is defined by the Commission
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for purposes of Rule 436(g)(2) of the Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the debt securities of the Company
or its Significant Subsidiaries.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company, and such termination shall be
without liability of any party to any other party except as provided in Sections
4, 6 and 7.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, officers and employees, and each person, if any, who
controls an Underwriter and its directors, officers and employees within the
meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus or Final Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company (which shall not be unreasonably
withheld); and
(iii) against any and all expenses whatsoever, as incurred
(including, subject to subsection (c) of this Section 6, the reasonable
fees and disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that, (A) the Company shall not be obligated to indemnify or
hold harmless
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an Underwriter and its controlling persons and their respective directors,
officers and employees in respect of any loss, claim, damage, liability or
action to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Preliminary Prospectus if such
Underwriter failed to deliver the Final Prospectus that was made available by
the Company for delivery to the person or persons asserting the claim which is
the basis of indemnification and such Final Prospectus cured such defect, and
(B) with respect to each Underwriter, this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information concerning such Underwriter
furnished to the Company by or on behalf of such Underwriter in writing
expressly for use in the Final Prospectus or any Preliminary Prospectus (or any
amendment or supplement thereto). This indemnity shall be in addition to any
indemnity that such indemnified persons may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, officers and employees, and each person, if any, who
controls the Company and their directors, officers and employees within the
meaning of Section 15 of the Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to an untrue statement or
omission, or alleged untrue statement or omission, made in the Registration
Statement, Final Prospectus or the Preliminary Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by or on behalf of such
Underwriter expressly for use in the Registration Statement, Final Prospectus or
such Preliminary Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement, unless and to the extent the indemnifying party did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights or defenses. An indemnified party may
participate at its own expense in the defense of any such action. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall be liable for
any settlement of any claim against an
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indemnified party made with the indemnifying party's written consent, which
consent shall not be unreasonably withheld.
7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the purchase discount applicable to the Notes purchased by the
Underwriters bears to the Offering Price appearing on the cover page of the
Final Prospectus and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11 (f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Notwithstanding
the provisions of this Section, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to purchasers exceeds the amount of any
damages which such Underwriter has otherwise been required to pay in respect of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section, each director, officer and employee of an Underwriter or the Company,
and each person, if any, who controls an Underwriter or the Company within the
meaning of Section 15 of the Act, shall have the same rights to contribution as
such Underwriter or the Company, as the case may be.
8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties, and agreements contained in this Agreement or
in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of an Underwriter or any controlling person, or by or on
behalf of the Company, and shall survive delivery of and payment for the Notes
to the Underwriters.
9. Default by an Underwriter.
(a) If any Underwriter shall default, in whole or in part, in its
obligation to purchase Notes hereunder, and if the Notes with respect to which
such default relates do not (after giving effect to arrangements, if any, made
pursuant to subsection (b) below) exceed in the aggregate 10% of the total
number of Notes that all Underwriters have agreed to purchase hereunder, then
the Notes to which the default relates shall be purchased by the non-defaulting
Underwriters on a pro rata basis based on the amount of Notes to be purchased as
set forth on
22
<PAGE>
Schedule I.
(b) If such default relates to more than 10% of the Notes, the
Representative may in its discretion arrange for another party or parties
(including the non-defaulting Underwriters, if they should so agree) to purchase
those of the Notes to which such default relates on the terms contained herein.
If within thirty-six (36) hours after such a default the Representative does not
arrange for the purchase of those of the Notes to which such default relates as
provided in this Section 9, this Agreement shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Sections 4, 6 and 7 hereof) or the non-defaulting Underwriters
(except as provided in Sections 6 and 7 hereof), but nothing in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) If the Notes to which the default relates are to be purchased by
any non-defaulting Underwriters, or are to be purchased by another party or
parties as aforesaid, the Representative or the Company shall have the right to
postpone the Closing Date for a period not exceeding five (5) business days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Final Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Final Prospectus that, in the
opinion of Underwriters' Counsel, may thereby be made necessary or advisable.
The term "Underwriter" as used in this Agreement shall include any party
substituted under this Section 9 with like effect as if it had originally been a
party to this Agreement with respect to such Notes.
10. Termination.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Final Prospectus, any
Material Adverse Change, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the U.S.
or international financial markets or any outbreak of hostilities or other
calamity or crisis, the effect of which on the financial securities markets of
the United States is such as to make it, in the judgment of the Underwriters,
impracticable to market the Notes or to enforce contracts for the sale of the
Notes, or (iii) if trading in any of the securities of the Company or any of its
subsidiaries has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for
23
<PAGE>
securities have been required, by either of said Exchanges or by order of the
Commission or any other governmental authority; provided that any such
suspension, limitation or minimum prices exist at the time of such termination
or (iv) if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Sections 4, 6 and 7.
11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to them c/o ________________________; notices to the Company shall be
directed to it at 1361 Alps Road, Wayne, New Jersey 07470, Attention: General
Counsel.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors,
heirs and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and their respective
successors, heirs and legal representatives, and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable rights, remedy or claim under or in
respect of this Agreement or any provision herein. This Agreement and all
conditions and provisions hereof are intended for the sole and exclusive benefit
of the Underwriters, the Company and their respective successors, heirs and
legal representatives, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes from either of the
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
13. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified times of day refer
to New York City time.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
INTERNATIONAL SPECIALTY PRODUCTS
INC.
By:
---------------------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
MANAGING UNDERWRITER(S)
By:____________________________
Name:
Title:
[OTHER UNDERWRITER(S)]
By:____________________________
Name:
Title:
25
<PAGE>
SCHEDULE I
UNDERWRITERS
Amount of
Notes
Name of Underwriter to be Purchased
- ------------------- ---------------
- ------------------------.................................................
- ------------------------.................................................
TOTAL: ==========
=====
26
EXHIBIT 4.1
- --------------------------------------------------------------------------------
INTERNATIONAL SPECIALTY PRODUCTS INC.
as Issuer
TO
-------------------------------,
Trustee
-------------------------
Form of Indenture
Dated as ___________, 1998
------------------------
SENIOR DEBT SECURITIES
- --------------------------------------------------------------------------------
NYFS01...:\01\47201\0001\1948\IND7168M.20C
<PAGE>
INTERNATIONAL SPECIALTY PRODUCTS INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ______________, 1998
Trust Indenture
Act Section Indenture
----------- ---------
310(a)(1).........................................................607(a)
(a)(2) ........................................................607(a)
(b) ...........................................................608
312(c) ..........................................................701
314(a) ..........................................................703
(a)(4) .......................................................1004
(c)(1) ........................................................102
(c)(2) ........................................................102
(e) ...........................................................102
315(b) ..........................................................601
316(a) (last sentence) ...........................................101
(a)(1)(A) ...................................................502, 512
(a)(1)(B) .....................................................513
(b) ..........................................................508
(c) ..........................................................104(e)
317(a)(1) ........................................................503
(a)(2) ........................................................504
(b) .........................................................1003
318(a) ..........................................................111
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions................................. 1
SECTION 102. Compliance Certificates and Opinions........ 13
SECTION 103. Form of Documents Delivered to Trustee. .... 14
SECTION 104. Acts of Holders............................. 15
SECTION 105. Notices, Etc. to Trustee and Company........ 17
SECTION 106. Notice to Holders; Waiver................... 18
SECTION 107. Effect of Headings and Table of Contents. .. 19
SECTION 108. Successors and Assigns...................... 19
SECTION 109. Separability Clause......................... 19
SECTION 110. Benefits of Indenture....................... 19
SECTION 111. Governing Law............................... 19
SECTION 112. Legal Holidays.............................. 20
ARTICLE 2
SECURITY FORMS
SECTION 201. Forms Generally............................. 20
SECTION 202. Form of Trustee's Certificate of
Authentication............................. 21
SECTION 203. Securities Issuable in Global Form.......... 21
ARTICLE 3
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........ 23
SECTION 302. Denominations............................... 27
SECTION 303. Execution, Authentication, Delivery
and Dating................................. 27
SECTION 304. Temporary Securities........................ 31
SECTION 305. Registration, Registration of Transfer
and Exchange............................... 34
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities.......................... 37
SECTION 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset.......... 39
SECTION 308. Optional Extension of Stated Maturity. ..... 42
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SECTION 309. Persons Deemed Owners....................... 43
SECTION 310. Cancellation................................ 44
SECTION 311. Computation of Interest..................... 44
SECTION 312. Currency and Manner of Payments
in Respect of Securities.................... 44
SECTION 313. Appointment and Resignation of Exchange
Rate Agent.................................. 49
SECTION 314. Designation as Senior Indebtedness.......... 50
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. ... 50
SECTION 402. Application of Trust Money.................. 52
SECTION 403. Repayment of Trust Money.................... 52
ARTICLE 5
REMEDIES
SECTION 501. Events of Default........................... 52
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.............................. 54
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.................. 54
SECTION 504. Trustee May File Proofs of Claim............ 55
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities.................... 56
SECTION 506. Application of Money Collected.............. 57
SECTION 507. Limitation on Suits......................... 57
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest............. 58
SECTION 509. Restoration of Rights and Remedies.......... 59
SECTION 510. Rights and Remedies Cumulative.............. 59
SECTION 511. Delay or Omission Not Waiver................ 59
SECTION 512. Control by Holders.......................... 59
SECTION 513. Waiver of Past Defaults..................... 60
ARTICLE 6
THE TRUSTEE
SECTION 601. Notice of Defaults.......................... 61
SECTION 602. Certain Rights of Trustee................... 61
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<PAGE>
SECTION 603. Trustee Not Responsible for Recitals or
Issuance of Securities...................... 63
SECTION 604. May Hold Securities......................... 63
SECTION 605. Money Held in Trust......................... 63
SECTION 606. Compensation and Reimbursement.............. 63
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interest........................ 64
SECTION 608. Resignation and Removal; Appointment of
Successor.................................. 65
SECTION 609. Acceptance of Appointment by Successor. .... 66
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business...................... 68
SECTION 611. Appointment of Authenticating Agent......... 68
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders.................................... 70
SECTION 702. Reports by Trustee.......................... 70
SECTION 703. Reports by Company.......................... 71
ARTICLE 8
MERGER, CONSOLIDATION AND SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms...................... 72
SECTION 802. Successor Person Substituted................ 72
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders................................. 73
SECTION 902. Supplemental Indentures with Consent of
Holders.................................... 75
SECTION 903. Execution of Supplemental Indentures........ 76
SECTION 904. Effect of Supplemental Indentures........... 76
SECTION 905. Conformity with Trust Indenture Act......... 76
SECTION 906. Reference in Securities to Supplemental
Indentures................................. 77
iv
<PAGE>
ARTICLE 10
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
and Interest.............................. 77
SECTION 1002. Maintenance of Office or Agency............ 77
SECTION 1003. Money for Securities Payments to Be Held
in Trust.................................. 79
SECTION 1004. Statement as to Compliance................. 81
SECTION 1005. Additional Amounts......................... 81
SECTION 1006. Payment of Taxes and Other Claims.......... 82
SECTION 1007. Corporate Existence........................ 83
SECTION 1008. Waiver of Certain Covenants................ 83
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................... 83
SECTION 1102. Election to Redeem; Notice to Trustee. .... 84
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.................................. 84
SECTION 1104. Notice of Redemption....................... 85
SECTION 1105. Deposit of Redemption Price................ 86
SECTION 1106. Securities Payable on Redemption Date. .... 86
SECTION 1107. Securities Redeemed in Part................ 88
ARTICLE 12
SINKING FUNDS
SECTION 1201. Applicability of Article................... 88
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities................................. 88
SECTION 1203. Redemption of Securities for Sinking Fund. 89
ARTICLE 13
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article................... 90
SECTION 1302. Repayment of Securities.................... 90
SECTION 1303. Exercise of Option......................... 91
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable..................... 91
SECTION 1305. Securities Repaid in Part.................. 93
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ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance
or Covenant Defeasance..................... 93
SECTION 1402. Defeasance and Discharge................... 93
SECTION 1403. Covenant Defeasance........................ 94
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance................................ 94
SECTION 1405. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions................... 96
SECTION 1406. Reinstatement.............................. 97
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called.................................... 98
SECTION 1502. Call, Notice and Place of Meetings......... 98
SECTION 1503. Persons Entitled to Vote at Meetings. ..... 98
SECTION 1504. Quorum; Action............................. 99
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings................... 100
SECTION 1506. Counting Votes and Recording Action of
Meetings.................................. 101
TESTIMONIUM
SIGNATURES
EXHIBITS FORMS OF CERTIFICATION
EXHIBIT A-1 FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE
EXHIBIT A-2 FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
vi
<PAGE>
INDENTURE, dated as of __________, 1998, between INTERNATIONAL
SPECIALTY PRODUCTS INC., a corporation duly organized and existing under the
laws of the State of Delaware, as issuer (the "Company"), having its principal
office at _________________________, and _____________________, as Trustee
(herein called the "Trustee"), having its principal office at
___________________________.
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 provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE 1
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 1 have the meanings assigned
to them in this Article 1 and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to
1
<PAGE>
them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted 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 3, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"actual knowledge" means the actual fact or statement of knowing, without
any duty to make any investigation with regard thereto.
"Additional Amounts" has the meaning specified in Section 1005.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"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 each place in connection with which the term is used or
in the
2
<PAGE>
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors (or a committee of the Board of Directors empowered to adopt such
resolution) and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York or in
the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close.
"Capital Stock" means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"CEDEL S.A." means Cedel, S.A., or its successor.
"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 Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
3
<PAGE>
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture and, thereafter, "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chief Executive Officer, its President,
its Chief Financial Officer, any Vice President, its Treasurer or any Assistant
Treasurer, its Secretary or any Assistant Secretary and delivered to the
Trustee.
"Conditional Redemption" means a redemption pursuant to a notice of
redemption that provides that such redemption is subject to the occurrence of
any event before the date fixed for such redemption as described in such notice
of redemption.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, except that with respect to presentation of Securities for payment
or for registration of transfer or exchange, such term shall mean the office or
agency of the Trustee at which, at any particular time, its corporate agency
business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the ECU, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Currency Conversion Date" has the meaning specified in Section 312(d).
"Currency Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institution of or within the international
banking community for the settlement of transactions, (ii) the ECU both within
the European Monetary System and for the settlement of transactions by public
institutions of or
4
<PAGE>
within the European Communities or (iii) any currency unit (or composite
currency) other than the ECU for the purposes for which it was established.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"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.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 312(f).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
5
<PAGE>
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York Clearing House bank, designated pursuant to Section 301
or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal, premium, if any, and interest,
if any (on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in
the case of a certificate) by the Chief Executive Officer, President, Chief
Financial Officer, Treasurer, any Vice President or any Assistant Treasurer of
the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of the United
States.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
6
<PAGE>
"Holder" means, in the case of a Registered Security, the Person in whose
name a 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,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and 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 any particular series of Securities established
as contemplated by Section 301; provided, however, that, if at any time more
than one Person is acting as Trustee under this instrument, "Indenture" shall
mean, with respect to any one or more series of Securities for which such Person
is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"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 at the rate prescribed in such Original Issue Discount Security.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issue Date" with respect to a Security means the date of first issuance
of such Security under this Indenture.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or security
interest except that a Lien shall not mean any license or right to use
intellectual property of the Company or a Subsidiary granted by the Company or a
Subsidiary.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated
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by the method specified pursuant to Section 301 for the Securities of the
relevant series, (ii) for any conversion of Dollars into any Foreign Currency,
the noon (New York City time) buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or another principal market for the Currency in question, or
such other quotations as the Exchange Rate Agent shall deem appropriate. Unless
otherwise specified by the Exchange Rate Agent, if there is more than one market
for dealing in any Currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency shall be that upon
which a non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President, the
Treasurer or any Assistant Treasurer and the Secretary or any Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"Optional Reset Date" has the meaning specified in Section 307(b).
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"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, or portions thereof, for whose payment, money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
(iii) Securities with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in this Indenture; and
(iv) mutilated, destroyed, lost or stolen Securities which have
become or are about to become due and payable which have been paid
pursuant to this Indenture 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 the Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount (or principal amount at maturity) of Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or
waiver under this Indenture, and for the purpose of making the calculations
required by TIA Section 313, Securities owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the
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pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any Affiliate of the Company.
"Participant" means a participant in the system of the Depositary,
including securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship, either directly or indirectly,
with such a participant.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal, premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of or
within any series, the place or places where the principal, premium, if any, and
interest on such Securities are payable as specified as contemplated by Sections
301 and 1002.
"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 coupons
appertains, as the case may be.
"principal" of a Security means the principal of the Security plus the
premium, if and when applicable, on the Security.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered in the Security
Register.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, 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 chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" of the Company means (a) the principal, premium, if
any, and interest, if any, with respect to all indebtedness for money borrowed
of the Company whether outstanding on the date hereof or thereafter created,
incurred, assumed or guaranteed, unless in the instrument creating or evidencing
the same or pursuant to which the same is outstanding, it is expressly provided
that such indebtedness is not
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senior or prior in right of payment to the Securities and (b) amendments,
supplements, deferrals, renewals, extensions, modifications and refundings of
any liability of the types referred to in clause (a) above.
"series" means a series of Securities or the Securities of the series.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" of the Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within 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 as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable, as such date may
be extended pursuant to the provisions of Section 308.
"Subsidiary" means, with respect to any Person, (i) a corporation of which
at the time of determination such Person, one or more Subsidiaries of such
Person or such Person and one or more Subsidiaries of such Person, directly
and/or indirectly, owns more than 50% of the shares of Voting Stock or (ii) any
other Person (other than a corporation) in which such Person, one or more
Subsidiaries of such Person or such Person and one or more Subsidiaries of such
Person, directly or indirectly, at the date of determination thereof has at
least majority ownership interest and the power to direct the policies,
management and affairs thereof.
"Total Assets" means the total amount of assets (less applicable reserves
and other properly deductible items), as set forth on the most recent balance
sheet of the Company and its consolidated Subsidiaries and computed in
accordance with generally accepted accounting principles.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
hereof or an indenture supplemental to this Indenture until a successor Trustee
shall
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have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean only the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, 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 person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or 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 direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Valuation Date" has the meaning specified in Section 312(c).
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers, trustees or individuals performing similar functions of a
Person (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee
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an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been satisfied and
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been satisfied, 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, including, without limitation, the
certificate of authentication provided pursuant to Section 303, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 1004)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been satisfied.
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.
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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 of
the Outstanding Securities of all series or one or more series, as the case may
be, may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing. If 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
15, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided
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in this Section 104. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of 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) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall
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have no obligation to do so. Notwithstanding TIA Section 316(c), such record
date shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 60 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided, however, that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in 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.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other documents 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
and mailed, first-class postage prepaid or transmitted via facsimile, to
or with the Trustee at its Corporate Trust Office, 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 or transmitted via
facsimile, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register within the time
prescribed for the giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder 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. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to mail notice
of any event to Holders of Registered Securities when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given to Holders of Bearer Securities if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be
specified in such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of the first such publication.
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 such notice with
respect to other Holders of Bearer Securities
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or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. 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 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
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THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE
IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT
APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking fund
payment date or Stated Maturity or 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 any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section 112) payment of interest, principal or premium, if
any, need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date or sinking
fund payment date, or at the Stated Maturity or Maturity; provided, however,
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE 2
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 substantially
the forms as shall be established by or pursuant to a Board Resolution, an
Officers' Certificate or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification (including, without
limitation, CUSIP numbers) 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. Any
portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
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Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached and shall have the following
statement in English on both the face of the obligation and on each interest
coupon: "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."
The Trustee's certificate of authentication on all Securities shall be in
substantially the form set forth in this Article 2.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ],
as Trustee
By:
-----------------------------
Authorized Officer
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of
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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 permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 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 Person or
Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Depositary or such
other Holder of such permanent global Security in registered form, or (ii) in
the case of a permanent global Security in bearer form, Euroclear or CEDEL S.A.
as specified by the Common Depositary for such global securities.
ARTICLE 3
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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 one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, 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, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest, if any, shall
accrue, or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest, if any, shall be payable
and the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by which
such date or dates shall be determined, and the basis upon which interest
shall be calculated if other than on the basis of a 360-day year of twelve
30-day months;
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(5) subject to Sections 305 and 1002, the place or places, if any,
other than or in addition to the Borough of Manhattan, The City of New
York, where the principal, premium, if any, and any interest, if any, 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 and, if different than the
location specified in Section 106, the place or places where notices or
demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the
series shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the
principal, premium, if any, or interest, if any, on the Securities of the
series shall be payable or in which the Securities of the series shall be
denominated and the particular provisions applicable thereto in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
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(12) whether the amount of payments of principal, premium, if any,
or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which
such amounts shall be determined;
(13) whether the principal, premium, if any, and interest, if any,
on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which such
Securities are denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the Currency in
which such Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) any provisions in modification of, in addition to or in lieu of
the provisions of Article 14 that shall be applicable to the Securities of
the series;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such series
and of like tenor of any authorized form
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and denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, whether
Registered Securities of the series may be exchanged for Bearer Securities
of the series (if permitted by applicable laws and regulations), whether
Bearer Securities of the series may be exchanged for Registered Securities
of the series, and the circumstances under which and the place or places
where such exchanges may be made and if Securities of the series are to be
issuable in global form, the identity of any initial depository therefor;
(19) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(20) 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, 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 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 provided in Section 304;
(21) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and/or terms of
such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants or upon the conversion or exchange of other
securities, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the Securities of
the series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option
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to redeem such Securities rather than pay such Additional Amounts (and the
terms of any such option);
(24) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable; and
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or 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 such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to one or more Board Resolutions, such Board Resolutions shall be delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. Denominations.
All Securities shall be issuable in such denominations as shall be
specified as contemplated by Section 301. With respect to Securities of any
series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such Series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
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The Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by its Chief Executive Officer, its President, its Chief
Financial Officer, any Vice President, its Treasurer, any Assistant Treasurer,
its Secretary or any Assistant Secretary. The signature of any of these officers
on the Securities or coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupon 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 such Company
Order shall authenticate and deliver such Securities; provided, however, 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, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture, dated no earlier than 15 days prior to the earlier of the
date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section 303 and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivered in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. 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 not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of
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such Securities and determining terms of particular Securities of such series
such as interest rate, maturity date, date of issuance and date from which
interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance
with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights, to general equitable principles and to such other qualifications
as such counsel shall conclude do not materially affect the rights of
Holders of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been satisfied (except for the
federal securities laws, the Trust Indenture Act, and the securities or
blue sky laws of the various states, as to which no opinion need be
expressed) and that authentication and delivery of such Securities and any
coupons and the execution and delivery of the supplemental indenture, if
any, by the Trustee will not violate the terms of this Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate
action with respect to such issuance; and
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(f) that the issuance of such Securities and any coupons will not
contravene the certificate of incorporation or by-laws of the Company or
result in any violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other material agreement known
to such counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if less than all the Securities of any series are to be 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 the preceding two paragraphs prior to or
at the time of issuance of each Security, but such documents shall be delivered
prior to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any 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.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
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 duly executed by the Trustee by manual signature of a Responsible
Officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 310 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 was never 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.
In the event Securities are issued in electronic or other uncertificated
form, such Securities may be validly issued without the signatures contemplated
by this Section 303.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, 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 conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, 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 in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series 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. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
(i) if in the United States, to the Depositary or custodian for the Depositary
or (ii) if outside the United States, to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
CEDEL S.A., for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
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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 Trustee
definitive 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
Depositary or the Common Depositary, as applicable, 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 temporary 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
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, 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, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent 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 or a subsequent date and
signed by CEDEL S.A. 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-2
to this Indenture (or in such other form as may be established pursuant to
Section 301); provided, further, that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs the
Depositary, Participant or an agent thereof or Euroclear or CEDEL S.A., as the
case may be, to request such exchange on his behalf and delivers to the
Depositary, Participant or an agent thereof or Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of the Depositary, directly or
through a Participant, or an agent thereof or Euroclear and CEDEL S.A., the
Trustee, any Authenticating Agent appointed for such series of Securities and
each
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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 the Depositary, Participant or an agent thereof or
Euroclear or CEDEL S.A. 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, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to the Paying Agent or to Euroclear
and CEDEL S.A., as applicable, in the latter case, on such Interest Payment Date
upon delivery by Euroclear and CEDEL S.A. to the Trustee of a certificate or
certificates in the form set forth in Exhibit A-2 to this Indenture (or in such
other form as may be established pursuant to Section 301), 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 S.A., as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section 304 and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the Exchange Date
or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal or interest owing with
respect to a beneficial interest in a temporary global Security will be made
unless and until such interest in such temporary global Security shall have been
exchanged for an interest in a definitive Security. Any interest so received by
the Paying Agent or Euroclear and CEDEL S.A. and not paid as herein provided
shall be returned to the Trustee immediately prior to the expiration of two
years after
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such Interest Payment Date in order to be repaid to the Company in accordance
with Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (the registers maintained in
the Corporate Trust Office of the Trustee and in any other office or agency of
the Company in a Place of Payment being herein sometimes collectively referred
to as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Registered Securities, of transfers of Registered Securities, for payment of
Securities and for conversion. The Security Register shall be in written form or
any other form capable of being converted into written form within a reasonable
time. At all reasonable times, the Security Register shall be open to inspection
by the Trustee. The Trustee is hereby initially appointed as security registrar
(the "Security Registrar") for the purpose of registering Registered Securities
and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, 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
denomination and of a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination
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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, any such permitted 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 a permitted 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 exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest 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 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay
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but in any event not later than the earliest date on which such interest may be
so exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such 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 (or its
custodian or agent) or the Common Depositary or such other depositary as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such 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, 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 to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; provided, further, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. 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 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.
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Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, to register the transfer
of or to exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the selection for redemption of
Securities of that series under Section 1103 or 1203 and ending at the close of
business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if Securities of the
series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided, however, that such Registered Security
shall be simultaneously surrendered for redemption, or (iv) to issue, to
register the transfer of or to exchange any Security which has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, 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, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of
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issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for 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, or, in case any such 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, 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, pay such Security or coupon.
Upon the issuance of any new Security under this Section 306, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section 306 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 shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section 306 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; Optional
Interest Reset.
(a) 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 such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of the Paying Agent with respect to that
portion of such permanent global security held for its account by the Depositary
(or its custodian or agent) and Euroclear and CEDEL S.A. with respect to that
portion of such permanent global Security held for its account by the Common
Depositary, for the purpose of permitting each of the Paying Agent, Euroclear
and CEDEL S.A. to credit the interest received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
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
and any applicable grace period 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 and, if applicable, interest on such defaulted
interest (to the extent lawful) at the rate specified in the Securities of such
series (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
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(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 in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided
in Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when 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 given in the
manner provided in Section 106, 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 given, such
Defaulted Interest shall be paid to the Persons in whose name 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.
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(b) The provisions of this Section 307(b) may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must
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follow the procedures set forth in Article 13 for repayment at the option of
Holders except that the period for delivery or notification to the Trustee shall
be at least 25 but not more than 35 days prior to such Optional Reset Date and
except that, if the Holder has tendered any Security for repayment pursuant to
the Reset Notice, the Holder may, by written notice to the Trustee, revoke such
tender or repayment until the close of business on the tenth day before such
Optional Reset Date.
Subject to the foregoing provisions of this Section 307 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.
SECTION 308. Optional Extension of Stated Maturity.
The provisions of this Section 308 may be made applicable to any series of
Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate applicable to the Extension
Period and (iv) the provisions, if any, for redemption during such Extension
Period. Upon the Trustee's transmittal of the Extension Notice, the Stated
Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 106, notice of such higher interest rate to
the Holder of such Security. Such
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notice shall be irrevocable. All Securities with respect to which the Stated
Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will have
the option to elect repayment of such Security by the Company on the Original
Stated Maturity at a price equal to the principal amount thereof, plus interest
accrued to such date. In order to obtain repayment on the Original Stated
Maturity once the Company has extended the Maturity thereof, the Holder must
follow the procedures set forth in Article 13 for repayment at the option of
Holders, except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 days prior to the Original Stated
Maturity and except that, if the Holder has tendered any Security for repayment
pursuant to an Extension Notice, the Holder may by written notice to the Trustee
revoke such tender for repayment until the close of business on the tenth day
before the Original Stated Maturity.
SECTION 309. 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
shall 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, premium, if any, and (subject to Sections 305 and 307) interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
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 coupons be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
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 in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
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Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment
at the option of the Holder, registration of transfer or exchange or for credit
against any current or future sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities and
coupons so delivered to the Trustee shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section 310, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that cancelled Securities be returned
to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with respect
to any Securities, interest on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any
series not permitting
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the election provided for in paragraph (b) below or the Holders of which
have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in
paragraph (d) below, payment of the principal, premium, if any, and
interest, if any, on any Registered or Bearer Security of such series will
be made in the Currency in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section
312 may be modified or superseded with respect to any Securities pursuant
to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal,
premium, if any, or interest, if any, on such Registered Securities in any
of the Currencies which may be designated for such election by delivering
to the Trustee a written election with signature guarantees and in the
applicable form established pursuant to Section 301, not later than the
close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in
any such Currency, such election will remain in effect for such Holder or
any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made
on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series
with respect to which an Event of Default has occurred or with respect to
which the Company has deposited funds pursuant to Article 4 or with
respect to which a notice of redemption has been given by the Company or a
notice of option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close of
business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon
as practicable after the Election Date of the aggregate principal amount
of Registered Securities for which Holders have made such written
election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant
to Section 301, then, unless otherwise specified pursuant to Section 301,
not later than the fourth Business Day after the Election Date for each
payment date for
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Registered Securities of any series, the Exchange Rate Agent will deliver
to the Company a written notice specifying, in the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal, premium, if any, and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the
amounts in such Currency so payable in respect of the Registered
Securities as to which the Holders of Registered Securities of such series
shall have elected to be paid in another Currency as provided in paragraph
(b) above. If the election referred to in paragraph (b) above has been
provided for pursuant to Section 301 and if at least one Holder has made
such election, then, unless otherwise specified pursuant to Section 301,
on the second Business Day preceding such payment date the Company will
deliver to the Trustee for such series of Registered Securities an
Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar or Foreign Currency amount
receivable by Holders of Registered Securities who have elected payment in
a Currency as provided in paragraph (b) above shall be determined by the
Company on the basis of the applicable Market Exchange Rate in effect on
the third Business Day (the "Valuation Date") immediately preceding each
payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Currency Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other
than pursuant to an election provided for pursuant to paragraph (b) above,
then with respect to each date for the payment of principal, premium, if
any, and interest, if any, on the applicable Securities denominated or
payable in such Foreign Currency occurring after the last date on which
such Foreign Currency was used (the "Currency Conversion Date"), the
Dollar shall be the Currency of payment for use on each such payment date.
Unless otherwise specified pursuant to Section 301, the Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any Paying
Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit,
the Dollar Equivalent of the Foreign Currency or, in the case of a
currency unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in paragraph
(f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have
elected to be
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paid in another Currency as provided in paragraph (b) above, and a
Currency Conversion Event occurs with respect to such elected Currency,
such Holder shall receive payment in the Currency in which payment would
have been made in the absence of such election; and if a Currency
Conversion Event occurs with respect to the Currency in which payment
would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Currency Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h)
below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate
for such Component Currency on the Valuation Date with respect to each
payment.
(h) For purposes of this Section 312 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the Currency
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to,
the ECU, on the Currency Conversion Date. If after the Currency Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If after
the Currency Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts of
such Component Currencies shall be replaced by an amount in such single
Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and
such amount shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component
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Currency. If after the Currency Conversion Date any Component Currency
shall be divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or more
currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar
Equivalent value of the Specified Amount of such former Component Currency
at the Market Exchange Rate immediately before such division and such
amounts shall thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies. If, after the Currency Conversion Date
of the relevant currency unit, including, but not limited to, the ECU, a
Currency Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Currency Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to clause (13) of Section 301 by which
the written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee and all Holders of such Securities denominated or payable in the
relevant Currency. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Currency
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Currency
Conversion Date. In the event the Company so determines that a Currency
Conversion Event has occurred with respect to the ECU or any other currency unit
in which Securities are denominated or payable, the Company will immediately
give written notice thereof to the Trustee and to the Exchange Rate Agent (and
the Trustee will promptly thereafter
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give notice in the manner provided for in Section 106 to the affected Holders)
specifying the Currency Conversion Date and the Specified Amount of each
Component Currency on the Currency Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange Rate Agent and
shall not otherwise have any duty or obligation to determine the accuracy or
validity of such information independent of the Company or the Exchange Rate
Agent.
SECTION 313. Appointment and Resignation of Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Currency
other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series
of Securities, or as so required, at least one Exchange Rate Agent. The
Company will cause the Exchange Rate Agent to make the necessary foreign
exchange determinations at the time and in the manner specified pursuant
to Section 301 for the purpose of determining the applicable rate of
exchange and, if applicable, for the purpose of converting the issued
Currency into the applicable payment Currency for the payment of
principal, premium, if any, and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of
a successor Exchange Rate Agent pursuant to this Section 313 shall become
effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company
and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents
with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed
with respect to the Securities of one or
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more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent
with respect to the Securities of any particular series that are
originally issued by the Company on the same date and that are initially
denominated and/or payable in the same Currency).
SECTION 314. Designation as Senior Indebtedness.
The Company hereby confirms the designation of the Securities as "Senior
Indebtedness" for the purposes of any outstanding securities of the Company
which expressly provide that such securities are subordinated to "Senior
Indebtedness" of the Company.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein
expressly provided for and the obligation of the Company to pay any Additional
Amounts as contemplated by Section 1005) and the Trustee shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for
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 of such series 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 of such series for whose payment
money has theretofore been deposited in trust with the Trustee or
any Paying Agent or segregated and held in trust by the Company and
thereafter
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repaid to the Company, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount, in the Currency in
which the Securities of such series are payable or in U.S.
Government Obligations, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and
interest, if any, 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 as to
such series have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section 401, the
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obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, 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, premium, if any,
and interest, if any, 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.
SECTION 403. Repayment of Trust Money.
The Trustee and the Paying Agent shall promptly turn over to the Company
upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years. After payment to the Company, Holders entitled to the
money must look to the Company for payment as unsecured general creditors unless
an abandoned property law designates another person.
ARTICLE 5
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 on any Security of that series,
or any related coupon, when such interest or coupon becomes due and
payable, and continuance of such default for a period of 60 days; or
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(2) default in the payment of the principal, and premium, if any, of any
Security of that series at its Maturity or upon redemption which default
shall continue for five or more days; or
(3) default in the deposit of any sinking fund payment when and as due by
the terms of the Securities of that series and Article 12 which default
shall continue for a period of 60 days; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a default in the performance, or
breach of a covenant or warranty which is specifically dealt with
elsewhere in this Section 501), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 331/3% in principal amount (or
principal amount at maturity, as the case may be) of all Outstanding
Securities of the affected 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) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable federal or state law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company, or of any substantial part of the
property of the Company, or ordering the winding up or liquidation of the
affairs of the Company, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by the Company to the institution of
bankruptcy or insolvency proceedings against it, or the filing by the
Company of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable federal
or state law, or the consent by it, to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of the property of the Company, or the making by the
Company of an assignment for the benefit of creditors; or
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(7) any other Event of Default provided with respect to Securities of that
series.
The failure to redeem any Security subject to a Conditional Redemption is
not an Event of Default if any event on which such redemption is so conditioned
does not occur and is not waived before the scheduled redemption date.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4) or (7) of
Section 501 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 331/3% in principal amount (or principal amount at maturity, as
applicable) of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of that series and interest
accrued thereon, if any, 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 portion thereof) and
interest accrued thereon, if any, shall become immediately due and payable. If
an Event of Default described in clause (5) or (6) of Section 501 occurs and is
continuing, then the principal amount and interest accrued thereon, if any, of
all the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to Securities
of any series (or of all series, as the case may be) has been made, the Holders
of a majority in principal amount (or principal amount at maturity, as
applicable) of the Outstanding Securities of that series (or of all series, as
the case may be), by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration.
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.
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The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security and any related coupon when such interest becomes due and
payable and such default continues for a period of 60 days, or
(2) default is made in the payment of the principal and premium, if
any, on any Security at the Maturity thereof, which default continues for
five or more days, then the Company will, upon demand of the Trustee, pay
to the Trustee 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, premium, if any, and interest, if any, and interest
on any overdue principal and premium, if any, and to the extent that
payment of such interest is lawful 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 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 and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to Securities of any series (or of all
series, as the case may be) 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 (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or the property of the Company or
its creditors,
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the Trustee (irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest, if any)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal,
premium, if any, or such portion of the principal amount of any
series of Original Issue Discount Securities as may be specified in
the terms of such series, and interest owing and unpaid in respect
of the Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities 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
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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 5 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, premium, if
any, or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 606;
Second: To the payment of the amounts then due and unpaid for principal,
premium, if any, and interest, if any, 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, premium, if any, and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled thereto
including, without limitation, the Company.
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 331/3% in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities
of that series in the case of any Event of Default described in clause
(1), (2), (3), (4) or (7) of Section 501, or, in the case of any Event of
Default described in clause (5)
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or (6) of Section 501, the Holders of not less than 331/3% in principal
amount (or principal amount at maturity, as applicable) of all Outstanding
Securities, 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 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of at least
a majority or more in principal amount (or principal amount at maturity,
as applicable) of the Outstanding Securities of that series in the case of
any Event of Default described in clause (1), (2), (3), (4) or (7) of
Section 501, or, in the case of any Event of Default described in clause
(5) or (6) of Section 501, by the Holders of a majority or more in
principal amount (or principal amount at maturity, as applicable) of all
Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Securities of the same series, in the case of any
Event of Default described in clause (1), (2), (3), (4) or (7) of Section
501, or of Holders of all Securities in the case of any Event of Default
described in clause (5) or (6) of Section 501, 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 Holders of Securities of the same
series, in the case of any Event of Default described in clause (1), (2),
(3), (4) or (7) of Section 501, or of Holders of all Securities in the
case of any Event of Default described in clause (5) or (6) of Section
501.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment,
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as provided herein (including, if applicable, Article 14) and in such Security,
of the principal, premium, if any, and (subject to Section 307) interest, if
any, on, such Security or payment of such coupon on the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders 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
5 or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. Control by Holders.
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With respect to the Securities of any series, the Holders of not less than
a majority in principal amount (or principal amount at maturity, as applicable)
of the Outstanding Securities of such 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, relating
to or arising under clause (1), (2), (3), (4) or (7) of Section 501, and, with
respect to all Securities, the Holders of not less than a majority in principal
amount (or principal amount at maturity, as applicable) of all Outstanding
Securities 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, not relating to or arising under
clause (1), (2), (3), (4) or (7) of Section 501, provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount (or principal amount at maturity, as applicable) of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default described in clause (1), (2),
(3), (4) or (7) of Section 501 (or, in the case of a default described in clause
(5) or (6) of Section 501, the Holders of not less than a majority in principal
amount (or principal amount at maturity, as applicable) of all Outstanding
Securities may waive any such past default), and its consequences, except a
default
(1) in respect of the payment of the principal, premium, if any, or
interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under Article
9 cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
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Upon any such waiver, any 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 Event of Default or impair any right consequent thereon.
ARTICLE 6
THE TRUSTEE
SECTION 601. 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 in the manner and to
the extent provided in TIA Section 313(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, premium, if any, or interest, if any, on any Security of such series
or in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the Trustee in good faith determines that the withholding of such notice
is in the interest of the Holders of Securities of such series and any related
coupons; 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 30 days after the occurrence
thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
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(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any coupons
appertaining thereto pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
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The Trustee shall not be required 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.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, 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 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
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(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 reasonable
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.
The obligations of the Company under this Section 606 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal, premium, if any, or interest, if any, on
particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interest.
There shall at all times be a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1). Each successor trustee shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 607, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
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in accordance with the provisions of this Section 607, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. 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 6 shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 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) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607(a) and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation.
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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The Company also may remove the Trustee with or without cause if the
Company so notifies the Trustee three months in advance and if no Default occurs
during the three-month period.
(d) 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). If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to the Holders
of Securities of such series in the manner provided for 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 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee. 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. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(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 rights, powers and trusts referred to in paragraph
(a) or (b) of this Section 609, as the case may be.
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(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 610. 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; and in
case at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication,
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such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 611,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 611, it shall resign
immediately in the manner and with the effect specified in this Section 611.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 611, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 611, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for 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 611.
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The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 611, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 606.
If an appointment with respect to one or more series is made pursuant to
this Section 611, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ]
By
----------------------------------
as Authenticating Agent
By
----------------------------------
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, 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 TIA Section
312(b).
SECTION 702. Reports by Trustee.
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Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit to the Holders of Securities, in the manner and to the extent
provided in TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of such
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section 703 as may be required by rules and regulations prescribed
from time to time by the Commission.
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ARTICLE 8
MERGER, CONSOLIDATION AND SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
sell, convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the entity formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (A) shall be a corporation, partnership,
limited liability company or trust organized and validly existing under
the laws of the United States of America, any state thereof or the
District of Columbia and (B) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the obligations of the Company for
the due and punctual payment of the principal of, premium, if any, and
interest, if any, 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 Default
or Event of Default shall have occurred and be continuing; and
(3) the Company or such Person shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, transfer or lease and such
supplemental indenture comply with this Article 8 and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
This Section 801 shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to sales, conveyances, leases
and transfers by the Company as transferor or lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other Person or any sale, conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety to any Person in
accordance with
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Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and in the event of any such sale,
conveyance or transfer, the Company, except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture and the
Securities and the coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Company and the Trustee, for any of the following purposes:
(1) to cure ambiguities, defects or inconsistencies, or to make any
other provisions with respect to questions or matters arising under this
Indenture;
(2) to effect or maintain the qualification of the Indenture under
the Trust Indenture Act; or
(3) to secure the Securities; or
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) to make any other change to the provisions of this Indenture
that does not adversely affect in all material respects the rights of
Holders hereunder; or
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(7) to add any Guarantees; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 609(b); or
(9) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(10) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(11) to add to or change 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, if any, 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
(12) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(13) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to make any other
provisions with respect to matters or questions arising under this
Indenture; provided, however, that such action shall not adversely affect
the interests of the Holders of Securities of any series and any related
coupons in any material respect; or
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(14) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities 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 (or principal amount at maturity, as applicable) of all Outstanding
Securities of any series, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by or pursuant to 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 which affect such series of
Securities or of modifying in any manner the rights of the Holders of Securities
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 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 contemplated by Section 1005 (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 the amount thereof provable in bankruptcy
pursuant to Section 504, or adversely affect any right of repayment at the
option of any Holder of any Security, or change any Place of Payment
where, or the Currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as may be
provided pursuant to Section 301 herein, or
(2) reduce the percent in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such
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supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting.
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. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 902 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 9 or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article 9,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
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Every supplemental indenture executed pursuant to this Article 9 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 9 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 10
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest, if any.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of, premium, if any, and interest, if any, 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 installments 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 the Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of that series that are
convertible may be surrendered for conversion, if applicable, and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served.
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If Securities of a series are issuable as Bearer Securities, the Company
will maintain (A) in 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 below (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; provided, however, that, if the Securities of that
series are listed on any 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 any required city located outside the
United States 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 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 of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, England, and the Company hereby appoints
the same as its agents to receive such respective presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium, if any, or interest, if any, 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 payable in Dollars,
payment of principal of, premium, if any, and interest, if any, on any Bearer
Security shall be made at the office of the Company's Paying Agent in The City
of New York, if (but only if) payment in Dollars of the full amount of such
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principal, premium, if any, or interest, if any, 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.
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 any
such designation; 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 of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Trustee in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee, as Paying Agent in
such city as its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 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 and any related coupons, it will, on or before each
due date of the principal, premium, if any, or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the principal, premium if any, or
interest, if any, 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.
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Whenever the Company shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, prior to or on each due date of
the principal, premium, if any, or interest, if any, on any Securities of that
series, deposit with a Paying Agent a sum (in the Currency described in the
preceding paragraph) sufficient to pay the principal, premium, if any, or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium, if any, or interest, if any,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal,
premium, if any, and interest, if any, on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company in the
making of any payment of principal, premium, if any, or interest, if any,
on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal, premium, if any, or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium, if any, or interest, if
any, has become due and payable shall be paid to
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the Company, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security or coupon 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, 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. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, 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 Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company will pay
to the Holder of any Security of such series or any coupon appertaining thereto
such Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal, premium, if any, or interest, if any, on, or in respect of, any
Security of a series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of a series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for
by the terms of such series established pursuant to Section 301 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
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Except as otherwise specified as contemplated by Section 301, 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 premium, if any, is
made), and at least 10 days prior to each date of payment of principal, premium,
if any, or interest, if any, 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' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal,
premium, if any, or interest, if any, on the Securities of that series shall be
made to Holders of Securities of that series or any related coupons who are not
United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
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 of that series or related coupons
and the Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled to (i) assume that no such withholding or deduction is required with
respect to any payment of principal, premium, if any, or interest, if any, with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) make all payments of
principal, premium, if any, and interest, if any, with respect to the Securities
of a series or related coupons without withholding or deductions until otherwise
advised. 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 1005.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Significant
Subsidiary or upon the income, profits or property of the Company or any
Significant Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose
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amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. Corporate Existence.
Subject to Article 8, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the rights (charter and statutory) and franchises of the Company and any
Significant Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Significant Subsidiaries as a whole and provided
further that the foregoing does not prohibit any mergers or consolidations
between Subsidiaries or between the Company and one or more Subsidiaries so long
as any such merger or consolidation involving the Company complies with Article
8.
SECTION 1008. Waiver of Certain Covenants.
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which
affects such series set forth in Sections 1006 to 1007, inclusive, if before the
time for such compliance the Holders of at least a majority in principal amount
(or principal amount at maturity, as applicable) of all Outstanding Securities
of any series, by Act of such Holders, waive such compliance in such instance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE 11
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 the terms of such Securities and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article 11.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
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SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 not less
than 30 days prior to the Redemption Date, to each Holder of 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 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 (together with
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106) will become due and payable upon each such Security, or the
portion thereof, 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;
(7) whether the redemption is conditional as provided in the last
paragraph of this Section 1104 and if so, the terms of the conditions, and
that, if the conditions are not satisfied or is not waived by the Company,
the Securities will not be redeemed and such a failure to redeem will not
constitute an Event of Default;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price
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unless security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished; and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on such Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
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.
A notice of redemption may provide that the redemption described in such
notice is a Conditional Redemption and such notice of Conditional Redemption
shall be of no effect unless all such conditions to the redemption have occurred
before such date or have been waived by the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date and subject to the satisfaction of any
conditions of a Conditional Redemption, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Redemption Price of, and accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Subject to the satisfaction of any conditions of a Conditional Redemption
and 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 in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and
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accrued interest, if any) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security 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, if
any, 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 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 premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in the
Security.
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SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article 11 or of Article 12) 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 such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, 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 12
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund shall
be made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article 12.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any mandatory 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.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the
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principal amount of Securities of such series which have been previously
delivered to the Trustee by the Company or for Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided, however, 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 mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in
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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.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series, by
public or private purchase, in the open market or otherwise, at a purchase price
for such Securities (excluding accrued interest and brokerage commissions, for
which the Trustee or any Paying Agent will be reimbursed by the Company) not in
excess of the principal amount thereof.
ARTICLE 13
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article 13.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of
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such Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing
for such repayment, with the "Option to Elect Repayment" form on the reverse of
such Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of the
Holders thereof shall have been surrendered as provided in this Article 13 and
as provided by
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or pursuant to the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and shall
be paid by the Company on the Repayment Date therein specified, and on and after
such Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for repayment
in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Company, together with
accrued interest, if any, to the Repayment Date; provided, however, that coupons
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 pursuant to Section
301, only upon presentation and surrender of such coupons, and provided further
that, in the case of Registered Securities, installments of interest, if any,
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 amount payable therefor as provided in Section
1302 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 as
provided in the preceding sentence, 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 the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
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SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article 14 shall apply to each
series of Securities, and the Company may, at its option, effect defeasance of
the Securities of or within a series under Section 1402, or covenant defeasance
of or within a series under Section 1403, in accordance with the terms of such
Securities and in accordance with this Article 14.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this Section
1402 with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons 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 such
Outstanding Securities and any related coupons (i) to receive, solely from the
trust fund described
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in Section 1404 and as more fully set forth in such Section, payments in respect
of the principal, premium, if any, and interest, if any, on such Securities and
any related coupons when such payments are due, and (ii) to receive shares of
common stock or other Securities from the Company upon the conversion of any
convertible securities issued hereunder, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1005, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article 14. Subject to
compliance with this Article 14, the Company may exercise its option under this
Section 1402 notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any related coupons.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this Section
1403 with respect to any Securities of or within a series, the Company shall be
released from its obligations under Sections 1006 through 1008 and, if specified
pursuant to Section 301, its obligations under any other covenant (other than
Section 1001), with respect to such Outstanding Securities and any related
coupons on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
related coupons shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, 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 covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(4) or Section 501(7) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
related coupons 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 any Outstanding Securities of or within a series and any
related coupons:
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(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article 14 applicable to it) in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any related
coupons, (A) money in an amount (in such Currency in which such Securities
and any related coupons are then specified as payable at Stated Maturity),
or (B) U.S. Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such Securities are then
specified as payable at Stated Maturity) which through the scheduled
payment of principal and interest, if any in respect thereof in accordance
with their terms will provide, not later than one day before the due date
of any payment of principal, premium, if any, and interest, if any, under
such Securities and any related coupons, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal, premium, if any, and interest, if any, on
such Outstanding Securities and any related coupons on the Stated Maturity
(or Redemption Date, if applicable) of such principal, premium, if any, or
installment or interest, if any, and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any related coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any related coupons; provided, however, that the Trustee
shall have been irrevocably instructed to apply such money or the proceeds
of such U.S. Government Obligations to said payments with respect to such
Securities and any related coupons. Before such a deposit, the Company may
give to the Trustee, in accordance with Section 1102 hereof, a notice of
its election to redeem all or any portion of such Outstanding Securities
at a future date in accordance with the terms of the Securities of such
series and Article 11 hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying
the foregoing.
(2) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture.
(3) In the case of covenant defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities and any related coupons will not
recognize income,
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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.
(4) Notwithstanding any other provisions of this Section 1404, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(5) 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 satisfied.
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 (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee--collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related 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 Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal, premium, if any, and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by
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such Security and any related coupons shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal, premium, if
any, and interest, if any, on such Security as they become due out of the
proceeds yielded by converting (from time to time as specified below in the case
of any such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the 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 such Outstanding Securities and any related
coupons.
Anything in this Article 14 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 (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants 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, as applicable, in accordance with
this Article 14.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company makes any
payment of principal, premium, if any, or interest, if any, on any such Security
or any related coupon following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities and
any related coupons to receive such payment from the money held by the Trustee
or Paying Agent.
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ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article 15 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.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in The City of New York 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 for 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 (or principal amount at
maturity, as applicable) of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have 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 The City of New York for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section 1502.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (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
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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 Person entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount (or principal
amount at maturity, as applicable) of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
(or principal amount at maturity, as applicable) of the Outstanding Securities
of a series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes 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 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for
lack of a quorum the Persons entitled to vote 25% in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities at
the time shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting.
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 not less
than a majority in principal amount (or principal amount at maturity, as
applicable) of the Outstanding Securities of that series; provided, however,
that, except as limited by the
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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 (or
principal amount at maturity, as applicable) 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 not less than such specified percentage in principal amount (or principal
amount at maturity, as applicable) 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 1504 shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount (or
principal amount at maturity, as applicable) of all Outstanding Securities
affected thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount (or principal amount at maturity, as
applicable) of the Outstanding Securities of such series that vote
in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any 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
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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 its 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 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount (or
principal amount at maturity, as applicable) of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount (or principal amount at
maturity, as applicable) of Outstanding Securities of such series held or
represented by him (determined as specified in the definition of "Outstanding"
in Section 101); provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount (or principal
amount at maturity, as applicable) of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the
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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 said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
This Indenture 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 Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
INTERNATIONAL SPECIALTY
PRODUCTS INC., as Issuer
By:
------------------------------------
Name:
Title:
[ ],
as Trustee
By:
------------------------------------
Name:
Title:
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EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, any estate the income of which is subject
to United States federal income taxation regardless of its source, or a trust
with respect to which a court within the United States is able to exercise
primary supervision over its administration and one or more United States
persons have the authority to control all of its substantial decisions ("United
States persons(s)"), (ii) are owned by United States person(s) that are (a)
foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the 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 you may
advise INTERNATIONAL SPECIALTY PRODUCTS INC. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner 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 Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
A1-1
<PAGE>
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such interest
in the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a Permanent Global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: [To be dated no earlier than the 15th day prior to (i) the Exchange Date
or (ii) the relevant Interest Payment Date occurring prior to the Exchange Date,
as applicable]
[Name of Person Making
Certification]
(Authorized Signatory)
------------------------------
Name:
Title:
A1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations,
any estate the income of which is subject to United States Federal income
taxation regardless of its source or or a trust with respect to which a court
within the United States is able to exercise primary supervision over its
administration and one or more United States persons have the authority to
control all of its substantial decisions ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise INTERNATIONAL SPECIALTY PRODUCTS INC. or its agent
that such financial institution 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) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163- 5(c)(2)(i)(D)(7))
and, to the further effect, that financial institutions described in
A2-1
<PAGE>
clause (iii) above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: [To be dated no earlier than the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[CEDEL S.A.]
By
-----------------------------------------
A2-2
EXHIBIT 5
WEIL, GOTSHAL & MANGES LLP
A LIMITED LIABILITY PARTNERSHIP INCLUDING
PROFESSION CORPORATIONS
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
September 14, 1998
International Specialty Products Inc.
c/o ISP Management Company, Inc.
1361 Alps Road
Wayne, New Jersey 07470
Ladies and Gentlemen:
We have acted as counsel to International Specialty Products Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of the Company's Registration
Statement on Form S-3, Registration No. 333-59593 (as amended, the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the registration of $1,000,000,000 aggregate initial offering
price of the following securities of the Company (the "Securities") for issuance
from time to time pursuant to Rule 415 under the Securities Act: (i) debt
securities (the "Debt Securities") which may be offered as senior debt of the
Company and (ii) shares of common stock, $0.01 par value (the "Common Stock").
The Securities may be offered in amounts, at prices and on terms to be
determined by market conditions at the time of the offering and will be set
forth in a prospectus supplement to the prospectus (the "Prospectus") included
in the Registration Statement.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Amended and Restated
Certificate of Incorporation of the Company, as amended to date, the By-laws of
the Company, as amended to date, the Registration Statement, the Prospectus, the
form of Indenture (the "Indenture") to be entered into between the Company and
the party to be named in a prospectus supplement as trustee under the Indenture
and such corporate records, agreements, documents and other instruments, and
such certificates or comparable documents of public officials and of officers
and representatives of the Company, and have made such inquiries of such
officers and representatives, as we have deemed relevant and necessary as a
basis for the opinion hereinafter set forth.
<PAGE>
International Specialty
Products Inc.
September 14, 1998
Page 2
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
(1) The Debt Securities have been duly authorized, and, when duly executed
on behalf of the Company, authenticated by the Trustee and delivered in
accordance with the terms of the Indenture and as contemplated by the
Registration Statement, will constitute legal, valid and binding obligations of
the Company, enforceable against it in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity), and
subject to the qualification that we express no opinion as to the effect on the
Debt Securities of laws which limit the rates of interest that may legally be
contracted for, charged or collected.
(2) The shares of Common Stock have been duly authorized and, when issued
as contemplated by the Registration Statement, will be validly issued, fully
paid and non-assessable.
The opinions expressed herein are limited to the laws of the State
of New York, the corporate laws of the State of Delaware and the federal laws of
the United States, and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
We hereby consent to all references to our firm included in the
Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
INTERNATIONAL SPECIALTY PRODUCTS INC.
RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
(Thousands, except ratio data)
<TABLE>
<CAPTION>
Pro
Year Ended December 31, Six Months Ended Forma
------------------------------------------------------ -------------------- Six
June 29, June 28, Months
1993 1994 1995 1996 1997 1997 1998 1998
---------- ---------- ---------- --------- ---------- ---------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
INCOME FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES
AND EXTRAORDINARY ITEMS $ 49,823 $ 72,484 $ 106,102 $ 116,628 $ 107,834 $ 53,965 $ 70,036 $ 67,843
ADD:
INTEREST EXPENSE 24,500 28,676 33,091 38,333 73,612 37,530 36,993 36,689
COMPANY'S 50% SHARE OF JOINT
VENTURE TAXES 1,878 1,191 4,722 3,953 4,630 2,409 1,645 1,645
COMPANY'S 50% SHARE OF JOINT
VENTURE INTEREST EXPENSE 50 6 8 5 31 3 1 1
INTEREST COMPONENT OF RENTAL EXPENSE 2,333 2,466 2,715 2,906 3,239 1,620 1,700 1,700
---------- ---------- ---------- --------- ---------- ---------- --------- ----------
EARNINGS AVAILABLE FOR FIXED CHARGES $ 78,584 $ 104,823 $ 146,638 $ 161,825 $ 189,346 $ 95,527 $ 110,375 $ 107,878
========== ========== ========== ========= ========== ========== ========= ==========
FIXED CHARGES:
INTEREST EXPENSE $ 24,500 $ 28,676 $ 33,091 $ 38,333 $ 73,612 $ 37,530 $ 36,993 $ 36,689
ADD:
CAPITALIZED INTEREST 901 428 400 191 974 437 1,041 1,041
COMPANY'S 50% SHARE OF JOINT
VENTURE INTEREST EXPENSE 50 6 8 5 31 3 1 1
INTEREST COMPONENT OF RENTAL EXPENSE 2,333 2,466 2,715 2,906 3,239 1,620 1,700 1,700
---------- ---------- ---------- --------- ---------- ---------- --------- ----------
TOTAL FIXED CHARGES $ 27,784 $ 31,576 $ 36,214 $ 41,435 $ 77,856 $ 39,590 $ 39,735 $ 39,431
========== ========== ========== ========== ========== ========== ========= ==========
RATIO OF EARNINGS TO FIXED CHARGES 2.83 3.32 4.05 3.91 2.43 2.41 2.78 2.74
========== ========== ========== ========== ========== ========== ========= ==========
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 23, 1998
included in International Specialty Products Inc.'s and ISP Holdings Inc.'s Form
10-K for the year ended December 31, 1997 and all references to our firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Roseland, New Jersey
September 17, 1998
