<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 9, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
MERITOR AUTOMOTIVE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 38-3354643
(STATE OF OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
</TABLE>
------------------------
2135 West Maple Road
Troy, Michigan 48084-7186
(248) 435-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
DAVID W. GREENFIELD, ESQ.
Senior Vice President,
General Counsel and Secretary
Meritor Automotive, Inc.
2135 West Maple Road
Troy, Michigan 48084-7186
(248) 435-7708
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
It is also respectfully requested that the Commission send copies of all
notices, orders and communications to:
<TABLE>
<S> <C>
PETER R. KOLYER, ESQ. MORTON A. PIERCE, ESQ.
Chadbourne & Parke LLP Dewey Ballantine LLP
30 Rockefeller Plaza 1301 Avenue of the Americas
New York, New York 10112 New York, New York 10019-6092
(212) 408-5100 (212) 259-8000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At any time and
from time to time after this Registration Statement becomes effective.
------------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================================
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.............. $500,000,000(2) 100% $500,000,000 $147,500
=============================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(2) If any such Debt Securities are issued (i) at an original issue discount,
such greater amount as shall result in aggregate net proceeds not in excess
of $500,000,000 to the registrant or (ii) with a principal amount
denominated in a foreign currency or composite currency, such amount as
shall result in an aggregate principal amount equivalent to $500,000,000 at
the time of initial offering.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
JURISDICTION.
SUBJECT TO COMPLETION, DATED APRIL 9, 1998
PROSPECTUS
MERITOR AUTOMOTIVE, INC.
DEBT SECURITIES
------------------------
Meritor Automotive, Inc., a Delaware corporation (the "Company"), may offer
its debt securities ("Debt Securities"), in one or more series from time to
time, in an aggregate principal amount (or, in the case of Debt Securities
issued at an original issue discount, net proceeds) not to exceed $500,000,000,
or the equivalent of that amount in one or more foreign or composite currencies,
on terms to be determined at the time of sale. This Prospectus will be
supplemented by a prospectus supplement (the "Prospectus Supplement") that will
set forth, as applicable, the specific designation, aggregate principal amount,
authorized denominations, purchase price, maturity, interest rate (or manner of
calculation of interest rate) and time of payment of interest, if any, any
redemption terms, the currency or composite currency in which the Debt
Securities or any interest on the Debt Securities will be payable, and other
specific terms, and any listing on a securities exchange, of the series of Debt
Securities in respect of which this Prospectus is being delivered (the "Offered
Debt Securities"), together with the terms of offering of the Offered Debt
Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Company may sell the Debt Securities through underwriters, dealers or
agents designated from time to time, or directly to one or more purchasers. See
"Plan of Distribution". The Prospectus Supplement will set forth the names of
any underwriters, dealers or agents involved in the sale of the Offered Debt
Securities, any applicable commissions or discounts and the net proceeds to the
Company from any such sale.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE> 3
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 "SEC"). This Prospectus contains
information concerning the Company, but does not contain all of the information
set forth in the Registration Statement of which this Prospectus is a part, and
exhibits and amendments to the Registration Statement that the Company has filed
or may file with the SEC under the Securities Act of 1933, as amended (the
"Securities Act"). Such reports, proxy statements, Registration Statement,
exhibits and other information filed by the Company can be inspected and copied
at the public reference facilities maintained by the SEC at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549; 7 World Trade Center, Suite 1300, New
York, New York 10048; and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can also be obtained at prescribed rates from the
Public Reference Section of the SEC at its principal office at 450 Fifth Street,
N.W., Washington, D.C. 20549. The SEC also maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants (including the Company) that file electronically with the SEC
(http://www.sec.gov).
The Company's Common Stock, par value $1 per share, is listed on the New
York Stock Exchange. Reports, proxy statements and other information concerning
the Company can be inspected at the office of the New York Stock Exchange at 20
Broad Street, New York, New York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, or portions of documents, filed with the SEC
pursuant to the Exchange Act (File No. 1-13093), are incorporated in this
Prospectus by reference and made a part hereof:
(a) the Company's Annual Report on Form 10-K for the Fiscal Year Ended
September 30, 1997 (including the portions of the Company's 1997 Annual
Report to Shareowners and the Company's Proxy Statement on Schedule 14A for
the Company's 1998 Annual Meeting of Shareowners that are incorporated
therein by reference); and
(b) the Company's Quarterly Report on Form 10-Q for the Quarterly
Period Ended December 31, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities hereunder shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof from
the date of the filing of such documents (such documents, and the documents
listed above, being referred to as the "Incorporated Documents"). Any statement
contained herein or in an Incorporated Document shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed Incorporated Document, or in an
accompanying Prospectus Supplement, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company undertakes to provide without charge to each person, including
any beneficial owner, to whom a copy of this Prospectus is delivered, on the
written or oral request of such person, a copy of any or all of the Incorporated
Documents, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference therein. Requests should be directed to
David W. Greenfield, Senior Vice President, General Counsel and Secretary,
Meritor Automotive, Inc., 2135 West Maple Road, Troy, Michigan, 48084, telephone
number (248) 435-7708.
2
<PAGE> 4
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBT SECURITIES,
INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH
SECURITIES, AND THE IMPOSITION OF A PENALTY BID IN CONNECTION WITH THE OFFERING.
FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION".
THE COMPANY
The Company is a leading global supplier of a broad range of components and
systems for use in commercial, specialty and light vehicles and serves its
customers worldwide through Heavy Vehicle Systems ("HVS") and Light Vehicle
Systems ("LVS"). HVS supplies drivetrain systems and components, including
axles, brakes, transmissions, clutches and drivelines, for heavy-duty and
medium-duty trucks, trailers, off-highway equipment, buses and coaches, as well
as other specialty and military vehicles. LVS supplies electromechanical and
other components and systems, including roof, door, access control and seat
adjusting systems, as well as suspension products and steel wheels, for
passenger cars, light trucks and sport utility vehicles.
The Company was incorporated in Delaware in May 1997 in connection with the
September 30, 1997 distribution by Rockwell International Corporation
("Rockwell"), the Company's former parent company, to Rockwell shareowners on a
pro rata basis of all of the issued and outstanding shares of the Company (the
"Distribution"). Prior to the Distribution, Rockwell transferred substantially
all of its operations, assets and liabilities related to the automotive
businesses then owned and operated by Rockwell (including liabilities relating
to former operations) to the Company or to subsidiaries of the Company.
The Company's principal executive offices are located at 2135 West Maple
Road, Troy, Michigan 48084. Its telephone number is (248) 435-1000.
USE OF PROCEEDS
Except as may otherwise be set forth in a Prospectus Supplement, the net
proceeds to be received by the Company from the issuance and sale of the Debt
Securities will be added to the Company's general funds which will be available
for general corporate purposes, including the repayment of existing
indebtedness, working capital needs, capital expenditures and acquisitions.
Pending application of the funds, the Company will use the net proceeds of the
Debt Securities for short-term investments.
RATIO OF EARNINGS TO FIXED CHARGES
The Company has calculated ratios of earnings to fixed charges for the
periods indicated, as follows:
<TABLE>
<CAPTION>
THREE
PRO FORMA MONTHS
YEAR ENDED SEPTEMBER 30,(1) YEAR ENDED ENDED
------------------------------------- SEPTEMBER 30, DECEMBER 31,
1993 1994 1995 1996 1997 1997 (2) 1997
----- ----- ----- ----- ----- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges(3)........................ 6.8 5.6 10.3 11.7 11.7 4.7 5.6
</TABLE>
- ---------------
(1) The financial information presented for periods prior to September 30, 1997
has been prepared based on the combined historical financial position,
results of operations and cash flows of the ongoing automotive businesses of
Rockwell prior to the Distribution and is not necessarily indicative of what
the financial position, results of operations or cash flows would have been
had the Company been an independent public company during the periods
presented.
(2) Pro forma financial information presented as if the Company was a
stand-alone entity in fiscal 1997. Pro forma information reflects (a) the
68.9 million shares of the Company's common stock issued on the date of the
Distribution, (b) management's estimate that corporate costs would have been
$11 million lower on a stand-alone basis than those allocated to the
automotive businesses by Rockwell and (c) $28 million of interest expense at
6 percent for the year ended September 30, 1997, related to the debt
incurred by the Company in connection with the $445 million pre-Distribution
payment to Rockwell.
(3) "Earnings" are defined as pre-tax income from continuing operations,
adjusted for income or loss attributable to minority interests in
subsidiaries, undistributed earnings of less than majority owned
subsidiaries, and fixed charges excluding capitalized interest. "Fixed
charges" are defined as interest on borrowings (whether expensed or
capitalized) and that portion of rental expense applicable to interest.
3
<PAGE> 5
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an Indenture, dated as of April
1, 1998 (the "Indenture"), between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Indenture is filed as an exhibit to the
Registration Statement, and copies of the Indenture may be obtained from the
Commission in the manner set forth above under "Available Information". Certain
provisions of the Indenture are summarized below. Such summaries are subject to,
and are qualified by reference to, all provisions of the Indenture, including
the definitions therein of certain terms. Numerical references in parentheses
below are to sections of the Indenture. Whenever particular provisions or
sections of the Indenture or terms defined in the Indenture are referred to in
this Prospectus, such provisions, sections or definitions are incorporated by
reference as a part of the statements made, and the statements are qualified by
such reference. Unless otherwise indicated, capitalized terms used in this
section that are defined in the Indenture have the meanings ascribed to such
terms in the Indenture.
The description below sets forth certain general terms and provisions of
the Debt Securities. The specific terms of the Offered Debt Securities, as well
as any modifications of or additions to the general terms of the Debt Securities
set forth below that may be applicable in the case of the Offered Debt
Securities, are described in the Prospectus Supplement. For a description of the
terms of the Offered Debt Securities, reference must be made to both the
Prospectus Supplement and the description of the Debt Securities in this
Prospectus.
GENERAL
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder and provides that Debt Securities may be issued thereunder up
to the aggregate principal amount which may be authorized from time to time by
the Company, in one or more series. Under the Indenture, the Company has the
ability to issue Debt Securities with terms different from those of Debt
Securities previously issued thereunder, and without the consent of the holders
thereof, to issue additional amounts of a series of Debt Securities (with
different dates for payments, different rates of interest and in a different
Currency or Currencies). Reference is made to the Prospectus Supplement for the
following terms of the Offered Debt Securities, as applicable: (1) the title of
the Offered Debt Securities; (2) any limit on the aggregate principal amount of
the Offered Debt Securities and any limit on the aggregate principal amount of
Debt Securities of such series; (3) if other than Dollars, the Currency or
Currencies in which the Offered Debt Securities are to be denominated, the
manner in which the Dollar equivalent of the principal amount is to be
determined upon original issuance and if any payment of principal of (or
premium, if any) or interest, if any, on or any other amount in respect of the
Offered Debt Securities will be payable other than in Dollars, the Currency or
Currencies in which such payment shall be payable; (4) the date or dates, or the
method by which such date or dates will be determined or extended, on which the
principal of (and premium, if any, on) the Offered Debt Securities will be
payable; (5) the rate or rates, or the method of determination thereof, at which
the Offered Debt Securities shall bear interest, if any, the date or dates from
which such interest shall accrue or the method by which such date or dates shall
be determined, the date or dates on which such interest shall be payable and for
any Registered Securities the Regular Record Dates, if any, for such interest
payment dates, or the method by which such date or dates shall be determined,
and the basis on which any interest shall be calculated if other than on the
basis of a 360-day year of twelve 30-day months; (6) the place or places where
principal of (and premium, if any) and interest, if any, on the Offered Debt
Securities may be payable, where any Registered Securities may be surrendered
for registration of transfer and where Offered Debt Securities may be exchanged
and notices and demands may be served or published; (7) the period or periods
within which, the price or prices at which, the Foreign Currency or Foreign
Currencies, if any, in which and the other terms and conditions upon which the
Offered Debt Securities may be redeemed, in whole or in part, at the option of
the Company; (8) the obligation, if any, of the Company to redeem or purchase
the Offered Debt Securities pursuant to any sinking fund or analogous provisions
or at the option of a holder thereof, and the period or periods within which,
the price or prices at which, the Foreign Currency or Foreign Currencies, if
any, in which, and the other terms and conditions upon which Offered Debt
Securities shall be redeemed or purchased, in whole or in part, pursuant to such
obligation; (9) the denomination of any Registered Security (if other than
$1,000 or any integral
4
<PAGE> 6
multiple thereof) and of any Bearer Security (if other than $10,000 or any
integral multiple thereof); (10) the portion of the principal amount of the
Offered Debt Securities, if other than the principal amount thereof, payable
upon acceleration of Maturity thereof or the method by which such portion shall
be determined; (11) whether Offered Debt Securities are to be Registered
Securities, Bearer Securities or both, are to be issuable with or without
coupons or both, and the terms upon which Bearer Securities may be exchanged for
Registered Securities, if other than in the manner provided in the Indenture,
and, in the case of Bearer Securities, the date as of which such Bearer
Securities shall be dated (if other than the date of original issuance of the
first security of like tenor and term to be issued); (12) whether Offered Debt
Securities are to be issued in whole or in part in the form of a Global
Security, and in such case the Depositary, whether such global form is temporary
or permanent, whether beneficial owners of interests in any Permanent Global
Security may exchange such interests for Debt Securities of such series in
certificated form and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other than in the
manner provided in the Indenture, and any applicable Exchange Date; (13) whether
any additional amounts will be payable by the Company on the Offered Debt
Securities in respect of any tax, assessment or governmental charge and whether
the Company will have the option to redeem the Offered Debt Securities rather
than pay such additional amounts or to redeem the Offered Debt Securities in the
event of the imposition of any certification, documentation, information or
other reporting requirement (and the terms and conditions of any such option);
(14) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Offered Debt Securities may be determined with
reference to an index, the manner in which such amounts shall be determined;
(15) the person to whom any interest on any Registered Security shall be
payable, if other than the person in whose name such Registered Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date, the manner in which, or person to whom, any interest on any
Bearer Security will be payable, if other than upon presentation and surrender
of the coupons appertaining thereto as they mature, and the extent to which any
interest payable on an Interest Payment Date on any temporary Global Security
will be paid if other than in the manner provided in the Indenture; (16) any
additions to or changes in any Events of Default or covenants applicable to the
Offered Debt Securities set forth in the Indenture; (17) the application, if
any, of the defeasance or covenant defeasance provisions of the Indenture to the
Offered Debt Securities; (18) the designation of the initial Exchange Rate
Agent, if applicable; (19) if other than the Trustee, the identity of the
trustee, Authenticating Agent, Security Registrar and/or Paying Agent; and (20)
any other terms of the Offered Debt Securities. (Section 3.01).
Additional provisions of the Indenture, such as interest rate reset and
extension provisions, may be made applicable to the Offered Debt Securities, as
described in the Prospectus Supplement.
If any series of Debt Securities is sold for, is payable in or is
denominated in one or more Foreign Currencies, applicable restrictions,
elections, tax consequences, specific terms and other information with respect
to such series of Debt Securities and such Foreign Currency or Foreign
Currencies shall be set forth in the Prospectus Supplement relating thereto.
If the Debt Securities are being issued as original issue discount
securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below the
stated principal amount, the United States federal income tax consequences and
other considerations applicable to such original issue discount securities will
be described in the related Prospectus Supplement.
The Debt Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company, unless otherwise
indicated in the applicable Prospectus Supplement. Other than the protections
which may otherwise be afforded holders of Debt Securities as a result of the
operation of the covenants described under "Covenants" below or as may be made
applicable to the Offered Debt Securities as described in the Prospectus
Supplement, there are no covenants or other provisions which may afford holders
of Debt Securities protection in the event of a leveraged buyout or other highly
leveraged transaction involving the Company or any similar occurrence.
5
<PAGE> 7
FORM, DENOMINATIONS, REGISTRATION, TRANSFER AND EXCHANGE
Debt Securities of a series may be issuable solely as Registered
Securities, solely as Bearer Securities or as both Registered Securities and
Bearer Securities. Unless otherwise provided in the applicable Prospectus
Supplement, Registered Securities denominated in Dollars (other than Registered
Securities in global form, which may be in any denomination) are issuable in
denominations of $1,000 and any integral multiple thereof and Bearer Securities
denominated in Dollars (other than Bearer Securities in global form, which may
be in any denomination) are issuable in denominations of $10,000 and any
integral multiple thereof. The Indenture provides that Debt Securities of a
series may be issuable in global form. See "Global Securities" below. Unless
otherwise indicated in the applicable Prospectus Supplement, Bearer Securities
(other than Global Securities) will have interest coupons attached. (Sections
2.01 and 3.02).
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations, of
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the holder, but subject to applicable laws, upon
request confirmed in writing and subject to the terms of the Indenture, Bearer
Securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of such series will be exchangeable into Registered
Securities of the same series of any authorized denominations and of like
aggregate principal amount, tenor and terms. Bearer Securities surrendered in
exchange for Registered Securities of the same series between the close of
business on a Regular Record Date or a Special Record Date and the relevant date
for payment of interest shall be surrendered without the coupon relating to such
date for payment of interest, and such interest will not be payable in respect
of the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the holder of such coupon when due in accordance with the
terms of the Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, Bearer Securities will not be issued in exchange for Registered
Securities. (Section 3.05).
In connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States (as defined
below under "Limitations on Issuance of Bearer Securities") and, unless
otherwise specified in the applicable Prospectus Supplement, a Bearer Security
may be delivered in connection with its original issuance only if the person
entitled to receive such Bearer Security furnishes written certification, in the
form required by the Indenture.
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Company for such purpose with respect to such series of Debt
Securities, without service charge and upon payment of any taxes and other
governmental charges. (Section 3.05). If the Prospectus Supplement refers to any
transfer agent (in addition to the Security Registrar) initially designated by
the Company with respect to any series of Debt Securities, the Company may at
any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent (or Security Registrar)
acts, except that, if Debt Securities of a series are issuable as Registered
Securities, the Company will be required to maintain a transfer agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Company will be required to maintain (in
addition to the Security Registrar) a transfer agent in a Place of Payment for
such series located outside the United States. The Company may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 10.02).
In the event of any redemption, the Company shall not be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period of 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any
6
<PAGE> 8
Registered Security being redeemed in part; or (iii) exchange any Bearer
Security selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of like tenor and terms of that series,
provided that such Registered Security shall be simultaneously surrendered for
redemption. (Section 3.05).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary identified in the Prospectus Supplement relating to such series
and registered in the name of the Depositary or the Depositary's nominee. Global
Securities may be issued in fully registered or bearer form and may be issued in
either temporary or permanent form.
The Company anticipates that the following provisions will generally apply
to depository arrangements. The specific terms of the depository arrangement
with respect to a series of Debt Securities and whether all or any part of the
Offered Debt Securities will be issued in the form of one or more Global
Securities will be described in the Prospectus Supplement relating to such
series.
Unless and until it is exchanged in whole or in part for the individual
Debt Securities represented thereby, a Global Security may not be transferred
except as a whole between the Depositary for such Global Security and its
nominee or by the Depositary or any nominee to a successor of the Depositary or
a nominee of such successor.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in a Global Security
will be limited to Participants or persons that may hold interests through
Participants. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the applicable Depositary or its nominee (with respect to
interests of Participants) and records of Participants (with respect to
interests of persons who hold through Participants). The laws of some states
require that certain purchasers of securities take physical delivery of
securities in definitive form. Such limits and such laws may impair the ability
to own, pledge or transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have any of the individual Debt Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. None of the Company, the Trustee, any Paying
Agent or the Security Registrar for such Debt Securities or any agent,
underwriter or dealer through which such Debt Securities are offered or sold
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal (or premium, if any) or
interest, if any, in respect of a permanent Global Security representing any of
such Debt Securities, immediately will credit Participants' accounts with
payments in
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amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security for such Debt Securities as shown on the records
of such Depositary or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name". Such payments will be
the responsibility of such Participants.
If a Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series to Participants in exchange for the Global Security
representing such series of Debt Securities. In addition, the Company may, at
any time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine not to have
any Debt Securities of such series represented by one or more Global Securities
and, in such event, will issue individual Debt Securities of such series to
Participants in exchange for the Global Security or Securities representing such
series of Debt Securities. (Section 3.05).
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
Unless otherwise provided in the applicable Prospectus Supplement, in
compliance with United States federal tax laws and regulations, Bearer
Securities (including Debt Securities in global form) may not be offered, sold,
resold or delivered in connection with their original issuance in the United
States or to United States persons (each as defined below) other than to a
Qualifying Branch of a United States Financial Institution (as defined below) or
a United States person acquiring Bearer Securities through a Qualifying Branch
of a United States Financial Institution and any underwriters, agents and
dealers participating in the offering of Debt Securities must agree that they
will not offer any Bearer Securities for sale or resale in the United States or
to United States persons (other than a Qualifying Branch of a United States
Financial Institution or a United States person acquiring Bearer Securities
through a Qualifying Branch of a United States Financial Institution) or deliver
Bearer Securities within the United States. In addition, any such underwriters,
agents and dealers must agree to send confirmations to each purchaser of a
Bearer Security confirming that such purchaser represents that it is not a
United States person or is a Qualifying Branch of a United States Financial
Institution and, if such person is a dealer, that it will send similar
confirmations to purchasers from it. The term "Qualifying Branch of a United
States Financial Institution" means a branch located outside the United States
of a United States securities clearing organization, bank or other financial
institution listed under Treasury Regulation Section 1.165-12(c)(1)(v) that
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended (the "Code"), and
the regulations thereunder.
Bearer Securities and any coupons appertaining thereto will bear a legend
substantially to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Under Sections 165(j) and 1287(a) of the Code, holders
that are United States persons, with certain exceptions, will not be entitled to
deduct any loss on Bearer Securities and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Securities.
The term "United States person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or of any political subdivision thereof or
therein (other than a partnership that is not treated as a United States person
under any applicable Treasury Regulation which may be issued), and an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source, and the term "United States" means the United States
of America (including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
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PAYMENT AND PAYING AGENTS
Unless otherwise provided in the applicable Prospectus Supplement, the
Place of Payment for a series of Debt Securities issuable solely as Registered
Securities will be New York, New York and the Company has initially designated
an office of the Trustee in New York, New York for this purpose. Notwithstanding
the foregoing, at the option of the Company, interest, if any, may be paid on
Registered Securities by (i) check mailed to the address of the person entitled
thereto as such person's address appears in the Security Register or (ii)
transfer to an account located in the United States maintained by the person
entitled thereto as specified in the Security Register. (Sections 3.07, 10.01
and 10.02). Unless otherwise provided in the applicable Prospectus Supplement,
payment of any installment of interest on Registered Securities will be made to
the person in whose name such Registered Security is registered at the close of
business on the Regular Record Date for such interest payment. (Section 3.07).
If Debt Securities of a series are issuable as Bearer Securities, unless
otherwise provided in the applicable Prospectus Supplement, the Company will be
required to maintain an office or agency outside the United States at which,
subject to any applicable laws and regulations, the principal of (and premium,
if any) and interest, if any, on such series will be payable; provided that, if
required in connection with any listing of such Debt Securities on the London
Stock Exchange Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States, the Company will maintain an office
or agency for such Debt Securities in London or Luxembourg or any city located
outside the United States required by such stock exchange. (Section 10.02). The
initial locations of such offices and agencies will be specified in the
applicable Prospectus Supplement. Unless otherwise provided in the applicable
Prospectus Supplement, payment of principal of (and premium, if any) and
interest, if any, on Bearer Securities may be made, at the holder's option, by
(i) check in the Currency designated by the Bearer Security presented or mailed
to an address outside the United States or (ii) transfer to an account in such
Currency maintained by the person entitled thereto with a bank located outside
the United States. (Sections 3.07 and 10.02). Unless otherwise provided in the
applicable Prospectus Supplement, payment of installments of interest on any
Bearer Securities on or before Maturity will be made only against surrender of
coupons for such interest installments as they severally mature. (Section
10.01). Unless otherwise provided in the applicable Prospectus Supplement, no
payment with respect to any Bearer Security will be made at any office or agency
of the Company in the United States or by check mailed to an address in the
United States or by transfer to an account maintained with a bank located in the
United States. Notwithstanding the foregoing, payments of principal of (and
premium, if any) and interest, if any, on Bearer Securities payable in Dollars
may be made at an office of the Company's Paying Agent in the United States if
(but only if) payment of the full amount thereof in Dollars at all offices
outside the United States is illegal or effectively precluded by exchange
controls or other similar restrictions and the Trustee has received an Opinion
of Counsel that such payment within the United States is legal. (Sections 3.07
and 10.02).
The Company may from time to time designate additional offices or agencies
for payment with respect to any Debt Securities, approve a change in the
location of any such office or agency and, except as provided above, rescind the
designation of any such office or agency. (Section 10.02).
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium, if any) and interest, if any, on any Debt
Security that is payable in a Currency other than Dollars will be made in
Dollars in the event that such Currency (i) ceases to be used both by the
government of the country that issued the Currency and by a central bank or
other public institution of or within the international banking community for
the settlement of transactions, (ii) is the ECU and ceases to be used both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) is any
Currency unit (or composite Currency) other than the ECU and ceases to be used
for the purposes for which it was established. (Section 3.10).
All moneys deposited with the Trustee or any Paying Agent or held for the
payment of principal of (or premium, if any) or interest, if any, on any Debt
Security or any coupon appertaining thereto that remains unclaimed at the end of
two years after such principal, premium or interest shall have become due and
payable
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will, at the request of the Company, be repaid to the Company and the holder of
such Debt Security or any coupon appertaining thereto will thereafter look only
to the Company for payment thereof. (Section 10.03).
CERTAIN DEFINITIONS
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary. "Unrestricted Subsidiary" means any Subsidiary
designated as such from time to time by the Company. (Section 1.01). Subject to
various limitations, the Company may from time to time designate any Restricted
Subsidiary as an Unrestricted Subsidiary and any Unrestricted Subsidiary as a
Restricted Subsidiary. (Section 10.07). Unrestricted Subsidiaries will not be
restricted by the various provisions of the Indenture applicable to Restricted
Subsidiaries, and the debt of Unrestricted Subsidiaries will not be consolidated
with that of the Company and its Restricted Subsidiaries in calculating
Consolidated Funded Debt under the Indenture.
"Funded Debt" means (a) indebtedness for money borrowed having a maturity
of more than 12 months, (b) certain obligations in respect of lease rentals and
(c) the higher of the par value or liquidation value of preferred stock of a
Restricted Subsidiary that is not owned by the Company or a Wholly-owned
Restricted Subsidiary, but, in the case of the Company, does not include certain
debt subordinate to the Debt Securities. (Section 1.01).
"Secured Debt" means indebtedness for money borrowed (other than
indebtedness among the Company and Restricted Subsidiaries), which is secured by
a mortgage or other lien on any Principal Property of the Company or a
Restricted Subsidiary or a pledge, lien or other security interest on the stock
or indebtedness of a Restricted Subsidiary. (Section 1.01).
"Principal Property" includes any real property (including buildings and
other improvements) of the Company or any Restricted Subsidiary, owned at the
date of the Indenture or thereafter acquired (other than any pollution control
facility, cogeneration facility or small power production facility acquired
after the date of the Indenture), which (i) has a book value in excess of 2.5%
of Consolidated Net Tangible Assets and (ii) in the opinion of the Board of
Directors is of material importance to the total business conducted by the
Company and its Restricted Subsidiaries as a whole. (Section 1.01).
"Consolidated Net Tangible Assets" means, at any date of computation, the
total amount of consolidated assets of the Company and its consolidated
subsidiaries, less the sum of (a) all current liabilities, except for (i) any
short-term debt, (ii) any current portion of long-term debt and (iii) any
current portion of obligations under capital leases, and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense (less
unamortized debt premium) and other like intangibles as shown on a balance sheet
of the Company and its consolidated subsidiaries prepared not more than 90 days
prior to the date of computation, in all cases computed in accordance with
generally accepted accounting principles. (Section 1.01).
"Sale and Lease-Back Transaction" means, subject to certain exceptions,
sales or transfers of any Principal Property owned by the Company or any
Restricted Subsidiary which has been in full operation for more than 180 days
prior to such sale or transfer, where the Company or such Restricted Subsidiary
has the intention of leasing back such property for more than 36 months but
discontinuing the use of such property on or before the expiration of the term
of such lease. (Section 10.06).
COVENANTS
Limitations on Liens. The Company and its Restricted Subsidiaries are
prohibited from creating, incurring, assuming or suffering to exist any Secured
Debt without equally and ratably securing the outstanding Debt Securities. The
foregoing restrictions are not applicable to (i) Secured Debt existing at the
date of the Indenture; (ii) liens on property acquired or constructed after the
date of the Indenture by the Company or a Restricted Subsidiary and created
contemporaneously with, or within twelve months after, such acquisition or the
completion of such construction to secure all or any part of the purchase price
of such property or the cost of such construction; (iii) mortgages on property
of the Company or a Restricted Subsidiary created within twelve months of
completion of construction of a new plant or plants on such
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property to secure all or part of the cost of such construction; (iv) liens on
property existing at the time such property is acquired; (v) liens on stock
acquired after the date of the Indenture by the Company or a Restricted
Subsidiary if the aggregate cost thereof does not exceed 15% of Consolidated Net
Tangible Assets; (vi) liens securing indebtedness of a successor corporation to
the Company to the extent permitted by the Indenture; (vii) liens securing
indebtedness of a Restricted Subsidiary outstanding at the time it became a
Restricted Subsidiary; (viii) liens securing indebtedness of any person
outstanding at the time it is merged with or substantially all its properties
are acquired by the Company or any Restricted Subsidiary; (ix) liens on property
or on the outstanding shares or indebtedness of a corporation existing at the
time such corporation becomes a Restricted Subsidiary; (x) liens created,
incurred or assumed in connection with an industrial revenue bond, pollution
control bond or similar financing arrangement between the Company or any
Restricted Subsidiary and any Federal, state or municipal government or other
governmental body or agency; (xi) extensions, renewals or replacements of the
foregoing permitted liens to the extent of the original amounts thereof; (xii)
liens in connection with government and certain other contracts; (xiii) certain
liens in connection with taxes or legal proceedings; (xiv) certain other liens
not related to the borrowing of money; and (xv) liens in connection with Sale
and Lease-Back Transactions as described under "Limitations on Sale and
Lease-Back". (Section 10.05).
In addition, the Company and its Restricted Subsidiaries may have Secured
Debt not otherwise permitted without equally and ratably securing the
outstanding Debt Securities if the sum of (a) the amount of such Secured Debt
plus (b) the aggregate value of Sale and Lease-Back Transactions (subject to
certain exceptions) described below, does not exceed 15% of Consolidated Net
Tangible Assets. (Section 10.05).
Limitations on Sale and Lease-Back. The Company and its Restricted
Subsidiaries are prohibited from engaging in Sale and Lease-Back Transactions
unless (a) the Company or its Restricted Subsidiaries would be entitled to incur
Secured Debt equal to the amount realizable upon such sale or transfer secured
by a mortgage on the property to be leased without equally and ratably securing
the outstanding Debt Securities; or (b) an amount equal to the greater of net
proceeds of the sale or fair value of the property sold (subject to certain
limitations contained in the Indenture) as determined by the Board of Directors
is applied within 180 days of any such transaction (i) to the retirement (other
than a mandatory retirement) of Consolidated Funded Debt or indebtedness of the
Company or a Restricted Subsidiary that was Funded Debt at the time it was
created (other than Consolidated Funded Debt or indebtedness owned by the
Company or any Restricted Subsidiary) or (ii) to the purchase of other Principal
Property having a value at least equal to the greater of such amounts; or (c)
the Sale and Lease-Back Transaction involved was an industrial revenue bond,
pollution control bond or similar financing arrangement between the Company or
any Restricted Subsidiary and any Federal, state, municipal government or other
governmental body or agency. (Section 10.06).
Certain Limitations on Merger of the Company. The Company may consolidate
with or merge into any other corporation, or convey or transfer its properties
and assets substantially as an entirety to any other Person, provided that (i)
the corporation formed by such consolidation or into which the Company is merged
or which acquires such assets, is organized under the laws of the United States,
any State thereof or the District of Columbia and expressly assumes in a
supplemental indenture the Company's obligations on the Debt Securities and
under the Indenture, (ii) after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing and (iii) certain
other conditions are met. (Section 8.01). If, upon any consolidation or merger
of the Company with or into any other corporation or upon any conveyance or
transfer of its properties and assets substantially as an entirety to any other
Person, any Principal Property of the Company or a Restricted Subsidiary would
thereupon become subject to any mortgage, security interest, pledge, lien or
encumbrance not otherwise permitted under the Indenture, the Company will, prior
to such transaction, secure the outstanding Debt Securities, equally and ratably
with any other indebtedness of the Company then entitled to be so secured, by a
direct lien on such Principal Property and certain other properties. (Section
8.03). The successor corporation formed by any consolidation or merger, or any
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, shall succeed to and be substituted for the Company under the
Indenture and thereafter the Company shall be relieved of all obligations and
covenants under the Indenture, the Debt Securities and any coupons. (Section
8.02).
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DEFEASANCE AND COVENANT DEFEASANCE
Defeasance. The Indenture provides as to any series of Debt Securities to
which the provisions described in this paragraph are made applicable, that the
Company will be discharged from any and all obligations in respect of the Debt
Securities of such series (except for certain obligations to register the
transfer and exchange of such Debt Securities, to replace mutilated, destroyed,
lost or stolen Debt Securities, to compensate, reimburse and indemnify the
Trustee, to maintain an office or agency with respect to the Debt Securities and
to hold moneys for payment in trust) upon irrevocable deposit with the Trustee,
in trust, of money or U.S. government securities (as described in the Indenture)
or a combination thereof, which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay (without reinvestment) and discharge (i) the principal of (and
premium, if any) and each installment of principal of (and premium, if any) and
interest, if any, on such Debt Securities on the Stated Maturity of such
principal or installment of principal or interest, if any, and (ii) any
mandatory sinking fund payments or analogous payments applicable to Debt
Securities of such series on the day on which such payments are due and payable
in accordance with the terms of the Indenture and such Debt Securities. Such a
trust may only be established if, among other things, the Company has delivered
to the Trustee an Opinion of Counsel (as specified in the Indenture) to the
effect that the holders of such Debt Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred. Such opinion must refer to
or be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of the Indenture. In
the event of any such deposit and discharge, the holders of such Debt Securities
would thereafter be entitled to look only to such trust fund for payment of
principal of (and premium, if any) and interest, if any, on the Debt Securities.
(Section 4.03).
Covenant Defeasance. The Indenture provides, as to any series of Debt
Securities to which the provisions described in this paragraph are made
applicable, that (i) the Company may omit to comply with the covenants contained
in Sections 10.05 (Limitations on Liens), 10.06 (Limitations on Sale and Lease-
Back) and 10.07 (Limitations on Change in Subsidiary Status) of the Indenture
and (ii) such noncompliance shall not be deemed to be an Event of Default under
the Indenture and the Debt Securities upon irrevocable deposit with the Trustee,
in trust, of money or U.S. government securities (as described in the Indenture)
or a combination thereof, which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay (without reinvestment) and discharge (x) the principal of (and
premium, if any) and each installment of principal of (and premium, if any) and
interest, if any, on such Debt Securities on the Stated Maturity of such
principal or installment of principal or interest, if any, and (y) any mandatory
sinking fund payments or analogous payments applicable to Debt Securities of
such series on the day on which such payments are due and payable in accordance
with the terms of the Indenture and such Debt Securities. Such a trust may be
established only if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel (as specified in the Indenture) to the effect that
the holders of such Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred. The obligations of the Company under
the Indenture and Debt Securities other than with respect to the covenants
referred to above and the Events of Default other than the Event of Default
referred to above shall remain in full force and effect. (Section 10.09).
The Prospectus Supplement will state if any defeasance provision will apply
to the Debt Securities.
MODIFICATION OF INDENTURE AND WAIVER OF CERTAIN COVENANTS
With the consent of the holders of at least a majority in principal amount
of the outstanding Debt Securities of each series affected, the Trustee and the
Company may execute a supplemental indenture to change the Indenture or modify
the rights of the holders of Debt Securities of any such series, but, without
the consent of the holder of each outstanding Debt Security so affected, a
supplemental indenture may not, among other things, (i) change (except as
otherwise provided with respect to Debt Securities of any series) the
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Stated Maturity of principal or interest, if any, on any Debt Security, or
reduce the principal amount thereof or the rate of interest, if any, thereon or
any premium payable on redemption, or reduce the amount of principal of an
Original Issure Discount Security that would be due and payable upon a
declaration of acceleration of Maturity pursuant to the Indenture, or change the
Currency in which any Debt Security (or the premium, if any) or the interest, if
any, 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, on or after the Redemption Date or
Repayment Date), or (ii) reduce the aforesaid percentage of holders of Debt
Securities of such series whose consent shall be required to authorize any such
supplemental indenture or to waive certain provisions of the Indenture. (Section
9.02).
The holders of a majority in principal amount of the Debt Securities of any
series at the time outstanding may waive compliance by the Company with certain
covenants in the Indenture with respect to Debt Securities of such series.
(Section 10.08).
The Indenture provides that in determining whether the holders of the
requisite principal amount of the Debt Securities of a series then outstanding
have given any request, demand, authorization, direction, notice, consent or
waiver thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
will be deemed to be outstanding will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof, (ii) the principal amount of a Security
denominated in one or more Foreign Currencies shall be deemed to be the Dollar
equivalent, determined on the date of original issuance of such Security, of the
principal amount thereof (or, in the case of an Original Issue Discount Security
or Indexed Security, the Dollar equivalent on the original issuance date of such
Security of the principal amount determined as provided in (i) above or (iii)
below), (iii) the principal amount of any Indexed Security that will be deemed
outstanding will be equal to the principal face amount of such Indexed Security
at original issuance unless otherwise provided with respect to such Security
pursuant to the Indenture, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such obligor
will be disregarded and deemed not to be outstanding. (Section 1.01).
The Indenture contains provisions for convening meetings of the holders of
Debt Securities of a series if Debt Securities of that series are issuable as
Bearer Securities. (Section 13.01). A meeting may be called at any time by the
Trustee for such Debt Securities, and also, upon request, by the Company or the
holders of at least 10% in principal amount of the outstanding Debt Securities
of such series, in any such case upon notice given as provided in the Indenture.
(Section 13.02). Except for any consent that must be given by the holder of each
Debt Security affected thereby, as described above, any resolution presented at
a meeting or adjourned meeting duly reconvened at which a quorum is present may
be adopted by the affirmative vote of the holders of a majority in principal
amount of the outstanding Debt Securities of that series; provided, however,
that any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be made, given or
taken by the holders of a specified percentage in principal amount of Debt
Securities of a series may be adopted at a meeting or adjourned meeting duly
reconvened at which a quorum is present by the affirmative vote of the holders
of such specified percentage in principal amount of the outstanding Debt
Securities of that series. Any resolution passed or decision taken at any
meeting of holders of Debt Securities of any series duly held in accordance with
the Indenture will be binding on all holders of Debt Securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding Debt Securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
may be given by the holders of not less than a specified percentage, which is
greater than a majority, in principal amount of the outstanding Debt Securities
of a series, the persons holding or representing such specified percentage in
principal amount of the Debt Securities of such series will constitute a quorum.
(Section 13.04).
DEFAULTS AND CERTAIN RIGHTS ON DEFAULT
An Event of Default with respect to any series of Debt Securities is
defined as being any of the following events: default for 30 days in payment of
any interest on the Debt Securities of such series; default in payment
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of principal of (and premium, if any, on) the Debt Securities of such series at
Maturity; default for 90 days after notice in performance of any other covenant
in the Indenture; certain events of bankruptcy, insolvency, receivership or
reorganization relating to the Company; or any other Event of Default provided
with respect to Debt Securities of that series. An Event of Default with respect
to Debt Securities of a particular series does not necessarily constitute an
Event of Default with respect to any other series. The Company will be required
to deliver to the Trustee annually a written statement as to the fulfillment of
its obligations under the Indenture. In case an Event of Default should occur
and be continuing with respect to any series of Debt Securities, the Trustee or
the holders of not less than 25% in principal amount of the Debt Securities of
such series then outstanding may declare the principal of all the Debt
Securities of such series to be immediately due and payable. Such declaration
may, under certain circumstances, be rescinded by the holders of a majority in
principal amount of the Debt Securities of such series at the time outstanding.
(Sections 5.01, 5.02 and 10.04).
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
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the holders of Debt Securities,
unless such holders of Debt Securities shall have offered to the Trustee
security or indemnity. Subject to such provisions for indemnification and
certain limitations contained in the Indenture, the holders of a majority in
principal amount of the Debt Securities of any series at the time outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to Debt Securities of such series.
The holders of a majority in principal amount of the Debt Securities of any
series at the time outstanding may, in certain cases, waive any past default
with respect to Debt Securities of such series except a default (i) in payment
of principal of, or premium, if any, or interest on any of the Debt Securities
of such series 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 Debt Security of such series affected. (Sections 5.12, 5.13 and 6.03).
GOVERNING LAW
The Indenture and the Debt Securities and any coupons appertaining thereto
will be governed by and construed in accordance with the laws of the State of
New York. (Section 1.12).
CONCERNING THE TRUSTEE
The Trustee is one of a number of banks with which the Company maintains
ordinary banking relationships and with which the Company maintains credit
facilities.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities: (i) through one or more
underwriters or dealers; (ii) directly to a limited number of purchasers or a
single purchaser; (iii) through one or more agents; or (iv) through a
combination of such methods of sale. The Prospectus Supplement relating to the
Offered Debt Securities will set forth the terms of the offering, including the
name or names of any underwriters or dealers and the respective amounts of the
Offered Debt Securities underwritten or purchased by each of them, the purchase
price of the Offered Debt Securities and the proceeds to the Company from such
sale, any underwriting discounts, commissions and other items constituting
underwriters' compensation from the Company, any initial public offering price,
any discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which the Offered Debt Securities may be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of the sale. The Debt
Securities may be offered to the public through underwriting syndicates
represented by managing underwriters or directly by underwriters. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the Offered Debt Securities will be subject to certain
conditions precedent, and the underwriters will
14
<PAGE> 16
be obligated to purchase all the Offered Debt Securities if any are purchased.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If agents are used in the sale, the Prospectus Supplement will set forth
the name of any agent involved in the offer or sale of the Offered Debt
Securities in respect of which the Prospectus Supplement is delivered as well as
any commissions payable by the Company to such agent. Unless otherwise indicated
in the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified investors
to purchase Offered 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 those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts and the date or dates in the future for
delivery of the Offered Debt Securities pursuant to such contracts.
In connection with an offering of Debt Securities, the underwriters or
agents, as the case may be, may purchase and sell the Debt Securities in the
open market. These transactions may include over-allotment and stabilizing
transactions and purchases to cover syndicate short positions created in
connection with the offering. Stabilizing transactions consist of certain bids
or purchases for the purpose of preventing or retarding a decline in the market
price of the Debt Securities; and syndicate short positions involve the sale by
underwriters or agents, as the case may be, of a greater number of Debt
Securities than they are required to purchase from the Company in the offering.
The underwriters may also impose a penalty bid, whereby selling concessions
allowed to syndicate members or other broker-dealers in respect of the Debt
Securities sold in the offering for their account may be reclaimed by the
syndicate if such Debt Securities are repurchased by the syndicate in
stabilizing or covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the Debt Securities, which may be higher
than the price that might otherwise prevail in the open market. Underwriters or
agents are not required to engage in these activities, and may end any of these
activities at any time.
Subject to certain conditions, the Company may agree to indemnify
underwriters, dealers, agents or purchasers and their controlling persons
against certain civil liabilities, including liabilities under the Securities
Act, or to contribute with respect to payments which such persons may be
required to make in respect thereof. Such persons may be customers of, engage in
transactions with, or perform services for the Company in the ordinary course of
business.
EXPERTS
The consolidated financial statements as of September 30, 1997 and 1996 and
for each of the three years in the period ended September 30, 1997 and the
related financial statement schedule incorporated by reference in this
Prospectus from the Company's Annual Report on Form 10-K for the year ended
September 30, 1997 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
15
<PAGE> 17
LEGAL MATTERS
The legality of the Debt Securities offered hereby has been passed upon for
the Company by Chadbourne & Parke LLP, 30 Rockefeller Plaza, New York, New York
10112, and, if the Debt Securities are distributed in an underwritten offering,
will be passed upon for the underwriters by Dewey Ballantine LLP, 1301 Avenue of
the Americas, New York, New York 10019-6092.
------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS
PROSPECTUS OR, WITH RESPECT TO ANY OFFERED DEBT SECURITIES, IN THE RELATED
PROSPECTUS SUPPLEMENT, IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND
ANY RELATED PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS AND ANY RELATED PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY 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 IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY RELATED PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE
HEREUNDER OR THEREUNDER, SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF OR THAT THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
16
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
AMOUNT
--------
<S> <C>
SEC Filing Fee............................................. $147,500
*Rating Agency Fees......................................... 245,000
*Printing and Engraving..................................... 55,000
*Fees and Expenses of Company's Counsel..................... 100,000
*Fees and Expenses of Accountants........................... 40,000
*Fees and Expenses of Trustee............................... 15,000
*Blue-Sky Expenses (including Legal Fees)................... 3,500
*Miscellaneous.............................................. 4,000
--------
*Total............................................ $610,000
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law permits Delaware corporations to
eliminate or limit the monetary liability of directors to a corporation or its
stockholders for breach of their fiduciary duty of care, subject to certain
limitations (8 Del. G.C.L. sec. 102(b)(7)). The last paragraph of Article
Seventh of the Company's Restated Certificate of Incorporation, as amended,
provides that the Company's directors are not liable to the Company or its
shareowners for monetary damages for breach of their fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareowners, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for willful or negligent violation of the provisions of the Delaware
General Corporation Law governing the payment of dividends or the purchase or
redemption of stock or (iv) for any transaction from which a director derived an
improper personal benefit.
The Delaware General Corporation Law provides for indemnification of
directors, officers, employees and agents subject to certain limitations (8 Del.
G.C.L. sec. 145). Section 13 of Article III of the Company's By-laws and the
appendix thereto entitled Procedures for Submission and Determination of Claims
for Indemnification Pursuant to Article III, Section 13 of the By-Laws provide,
in substance, for the indemnification of directors, officers, employees and
agents of the Company to the extent permitted by Delaware law.
The Company's directors and officers are insured against certain
liabilities for actions taken in such capacities, including liabilities under
the Securities Act.
In addition, the Company and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments that the Company
or such persons may be required to make in respect of such liabilities.
II-1
<PAGE> 19
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
1 -- Forms of proposed Underwriting Agreement, Terms Agreement
and Delayed Delivery Contract.
4 -- Indenture dated as of April 1, 1998 between the Company and
The Chase Manhattan Bank, as Trustee, including table of
contents and cross-reference sheet to Trust Indenture Act of
1939, as amended.
5 -- Opinion of Chadbourne & Parke LLP as to the legality of the
securities being registered.
12 -- Computation of Ratio of Earnings to Fixed Charges for the
Five Years ended September 30, 1997 and the Three Months
ended December 31, 1997.
23a -- Consent of Deloitte & Touche LLP, independent auditors.
23b -- Consent of Chadbourne & Parke LLP contained in their opinion
filed as Exhibit 5 to this Registration Statement.
23c -- Consent of David W. Greenfield, Esq., Senior Vice President,
General Counsel and Secretary of the Company.
23d -- Consent of M. Lee Murrah, Esq., Assistant General Counsel of
the Company.
24 -- Powers of Attorney authorizing certain persons to sign this
Registration Statement on behalf of certain directors and
officers of the Company.
25 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of The Chase
Manhattan Bank, Trustee under the Indenture.
</TABLE>
ITEM 17. UNDERTAKINGS.
The Company 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;
(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 prospectus filed with the SEC pursuant to
Rule 424(b) under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; (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
clauses (i) and (ii) do not apply if the information required to be
included in a post-effective amendment by those clauses is contained in
periodic reports filed with or furnished to the SEC by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration
II-2
<PAGE> 20
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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described above, or
otherwise, the Company has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted against the Company by such director, officer or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 21
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 REGISTRATION
STATEMENT ON FORM S-3 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF TROY, STATE OF MICHIGAN, ON THE 9TH DAY OF
APRIL, 1998.
MERITOR AUTOMOTIVE, INC.
By: /s/ DAVID W. GREENFIELD
------------------------------------
David W. Greenfield
Senior Vice President,
General Counsel and Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE 9TH DAY OF APRIL, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
LARRY D. YOST* Chairman of the Board and Chief Executive
- ----------------------------------------------------- Officer
Larry D. Yost (principal executive officer) and Director
JOSEPH B. ANDERSON, JR.* Director
- -----------------------------------------------------
Joseph B. Anderson, Jr.
DONALD R. BEALL* Director
- -----------------------------------------------------
Donald R. Beall
JOHN J. CREEDON* Director
- -----------------------------------------------------
John J. Creedon
CHARLES H. HARFF* Director
- -----------------------------------------------------
Charles H. Harff
HAROLD A. POLING* Director
- -----------------------------------------------------
Harold A. Poling
Director
- -----------------------------------------------------
Martin D. Walker
THOMAS A. MADDEN* Senior Vice President and Chief Financial
- ----------------------------------------------------- Officer
Thomas A. Madden (principal financial officer)
LAWRENCE J. LOCKWOOD* Vice President and Controller
- ----------------------------------------------------- (principal accounting officer)
Lawrence J. Lockwood
*By /s/ DAVID W. GREENFIELD
-------------------------------------------------
David W. Greenfield
(Attorney-in-fact)**
</TABLE>
- ---------------
** By authority of the powers of attorney filed as Exhibit 24 to this
Registration Statement.
II-4
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
<S> <C> <C> <C>
1 -- Forms of proposed Underwriting Agreement, Terms Agreement
and Delayed Delivery Contract.
4 -- Indenture dated as of April 1, 1998 between the Company and
The Chase Manhattan Bank, as Trustee, including table of
contents and cross-reference sheet to Trust Indenture Act of
1939, as amended.
5 -- Opinion of Chadbourne & Parke LLP as to the legality of the
securities being registered.
12 -- Computation of Ratio of Earnings to Fixed Charges for the
Five Years ended September 30, 1997 and the Three Months
ended December 31, 1997.
23a -- Consent of Deloitte & Touche LLP, independent auditors.
23b -- Consent of Chadbourne & Parke LLP contained in their opinion
filed as Exhibit 5 to this Registration Statement.
23c -- Consent of David W. Greenfield, Esq., Senior Vice President,
General Counsel and Secretary of the Company.
23d -- Consent of M. Lee Murrah, Esq., Assistant General Counsel of
the Company.
24 -- Powers of Attorney authorizing certain persons to sign this
Registration Statement on behalf of certain directors and
officers of the Company.
25 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of The Chase
Manhattan Bank, Trustee under the Indenture.
</TABLE>
<PAGE> 1
Exhibit 1
MERITOR AUTOMOTIVE, INC.
[Title of Security]
UNDERWRITING AGREEMENT
[Date]
To the Representative or Representatives
named in Schedule A hereto of the
Underwriters named in Schedule B
hereto
Ladies and Gentlemen:
The undersigned Meritor Automotive, Inc., a Delaware corporation (the
"Company"), confirms its agreement with the several underwriters named in
Schedule B hereto (the "Underwriters") as set forth below. If the firm or firms
listed in Schedule B hereto include only the firm or firms listed in Schedule A
hereto (the "Representatives"), then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
The Company proposes to issue and sell debt securities of the titles and
amounts set forth in Schedule A hereto (collectively, the "Purchased
Securities"), to be issued under the Indenture dated as of April 1, 1998 (the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (No. 333- ) relating to
$500,000,000 of debt securities, and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"). Such Registration Statement has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such Registration Statement and the
Prospectus or Prospectuses relating to the sale of Purchased Securities by the
Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time may be amended or supplemented,
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1933 Act or otherwise (including by means of the Prospectus Supplement (as
defined below)), are in each case collectively referred to herein as the
"Registration Statement" and the "Prospectus", respectively; provided, however,
that a supplement of the Prospectus contemplated by Section 3(a) (a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only with
respect to the offering of the Purchased Securities to which it relates and
<PAGE> 2
such Prospectus Supplement shall be the only supplement included in the terms
"Registration Statement" or "Prospectus". If the Company elects to rely on
Rule 434 under the 1933 Act, all references to the Prospectus shall be deemed
to include, without limitation, the form of prospectus and the term sheet,
taken together, provided to the Representatives by the Company in reliance on
such Rule 434. If the Company files a registration statement to register a
portion of the Purchased Securities and relies on Rule 462(b) under the 1933
Act for such registration statement to become effective upon filing with the
Commission (the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 333- ) and the Rule 462 Registration
Statement, as each such registration statement may be amended pursuant to the
1933 Act.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective complied, and as of the date
hereof complies, in all material respects with the requirements of the
1933 Act, the rules and regulations thereunder (the "Regulations"), the
1934 Act and the rules and regulations thereunder and the 1939 Act. The
Registration Statement, at the time the Registration Statement became
effective did not, and as of the date hereof does not, 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 therein not
misleading. The Prospectus, at the time the Registration Statement became
effective did not, and as of the date hereof does not, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply (i) to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus or (ii) to
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification under the 1939 Act (Form T-1)
(the "Form T-1") of the Trustee under the Indenture.
2
<PAGE> 3
(b) Any documents incorporated by reference in the Registration
Statement and the Prospectus subsequent to the date hereof will, when
filed with the Commission, conform in all material respects to the
requirements of the 1934 Act and the rules and regulations thereunder, and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has been no material adverse change
in the condition, financial or otherwise, or the results of operations of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business.
(d) Each of the Company, Meritor Heavy Vehicle Systems, LLC, a
Delaware limited liability company ("HVS"), and Meritor Light Vehicle
Systems, Inc., a Delaware corporation ("LVS"), has been duly formed or
incorporated, as the case may be, is validly existing and in good standing
under the laws of the State of Delaware and has the requisite corporate
power and authority to carry on its business as currently being conducted,
to own, lease and operate its properties, and each is duly qualified and
is in good standing as a foreign limited liability company or corporation,
as the case may be, in each jurisdiction wherein the character of the
property owned or held under lease by it makes such qualification
necessary, except in such jurisdictions where the failure so to qualify or
to be in good standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise.
(e) All of the outstanding Common Shares of HVS and all of the
outstanding Common Stock of LVS are validly issued, fully paid and
nonassessable and not subject to any preemptive rights, and are owned by
the Company, free and clear of any security interest, mortgage, pledge,
claim, lien or encumbrance (each, a "Lien"). There are no outstanding
subscriptions, rights, warrants, options, calls, commitments for sale or
Liens related to or entitling any person to purchase or otherwise to
acquire any equity interests in HVS or LVS.
(f) None of the Company, HVS or LVS is in violation of its
respective certificate of incorporation or by-laws
3
<PAGE> 4
or other organizational documents or in default under any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which any of them is a party or by which any of them or any of their
properties may be bound, except for any violations or defaults which,
individually or in the aggregate, would not have a material adverse effect
on the financial position or consolidated financial statements of the
Company and its subsidiaries taken as a whole. The execution and delivery
of this Agreement, the Delayed Delivery Contracts (as defined below), if
any, and the Indenture and the consummation of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action; each of this Agreement and the Indenture are, and when
duly executed and delivered in accordance with their terms, the Delayed
Delivery Contracts, if any, will be, valid and legally binding agreements
of the Company and 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 pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company is a party or by which it may be bound or
to which any of the property or assets of the Company is subject, nor will
such action result in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or By-Laws of the Company or, to
the best of its knowledge, any law, administrative regulation or
administrative or court decree applicable to the Company; and no consent,
approval, authorization or order of any court or governmental authority or
agency is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1933 Act, the 1939 Act, the Regulations or state securities or Blue Sky
laws.
(g) The Purchased Securities have been duly authorized for issuance
and sale pursuant to this Agreement and, when duly executed, authenticated
and delivered pursuant to the provisions of this Agreement and of the
Indenture against payment of the consideration therefor in accordance with
this Agreement, the Purchased Securities will be valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be entitled to the benefits of
the Indenture, which will
4
<PAGE> 5
be substantially in the form heretofore delivered to you, except as
supplemented to reflect the terms of any one or more series of debt
securities.
(h) The Purchased Securities and the Indenture conform in all
material respects to all statements relating thereto contained in the
Prospectus and the applicable Prospectus Supplement.
(i) No strike or labor stoppage by the employees of the Company or
any subsidiary exists, or, to the knowledge of the Company, is imminent
which is expected to have a material adverse effect upon the conduct of
the business, or the earnings, operations or condition, financial or
otherwise, of the Company and its subsidiaries, considered as one
enterprise.
(j) The financial statements (other than quarterly or other
unaudited interim financial statements) included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the financial position of the Company and its consolidated subsidiaries as
of the dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
(except as otherwise stated therein); and the supporting schedules
included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein. Any
quarterly or other unaudited interim financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
have been prepared in compliance with the applicable requirements of the
1933 Act, the Regulations, the 1934 Act and the rules and regulations
thereunder and have been prepared on a basis substantially consistent
(except as otherwise stated therein) with that of the applicable audited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, and such unaudited financial
statements contain all adjustments necessary to present a fair statement
of the results of operations for the periods reported. The pro forma
financial information included or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance
with the applicable requirements of Rule 11-02 of Regulation S-X, and in
the opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to therein.
5
<PAGE> 6
Any certificate signed by any officer of the Company and delivered to you
or counsel for the Underwriters in connection with an offering of Purchased
Securities shall be deemed a representation and warranty by the Company, as to
the matters covered thereby, to each Underwriter participating in such offering.
SECTION 2. Purchase and Sale. The several and not joint commitments of the
Underwriters to purchase Purchased Securities in the respective amounts set
forth on Schedule B hereto shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Purchased
Securities to be purchased by the Underwriters shall be made at the office
specified in Schedule A hereto or at such other place as shall be agreed upon by
you and the Company, on the date and at the time so specified or such other time
as shall be agreed upon by you and the Company (such time and date being
referred to as the "Closing Time"). Payment shall be made to the Company by wire
transfer to an account designated by the Company in immediately available funds
against delivery to you for the respective accounts of the Underwriters of the
Purchased Securities to be purchased by them. Such Purchased Securities shall be
in such denominations and registered in such names as you may request in writing
at least two business days prior to the Closing Time. Such Purchased Securities,
which may be in temporary form, will be made available for examination and
packaging by you on or before the first business day prior to the Closing Time.
Delivery at the Closing Time of any Purchased Securities that are in
bearer form shall be effected by delivery of a single temporary global security
without coupons (the "Global Debt Security") evidencing the Purchased Securities
that are in bearer form to a common Depositary for Morgan Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System ("Euroclear"),
and for Centrale de Livraison de Valeurs Mobilieres S.A. ("CEDEL") for credit to
the respective accounts at Euroclear or CEDEL of each Underwriter or to such
other accounts as such Underwriter may direct. Any Global Debt Security shall be
delivered to you not later than the Closing Time, against payment of funds to
the Company in the net amount due to the Company for such Global Debt Security
by the method and in the form set forth in Schedule A hereto. The Company shall
cause definitive Purchased Securities in bearer form to be prepared and
delivered in exchange for such Global Debt Security in such manner and at such
time as may be provided in or pursuant to the Indenture; provided, however, that
the Global Debt Security shall be
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exchangeable for definitive Purchased Securities in bearer form only on or after
the date specified for such purpose in the Prospectus.
If authorized in Schedule A hereto, the Underwriters named therein may
solicit offers to purchase debt securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit I hereto with such changes therein as the Company may approve. Any
Purchased Securities purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein referred to as "Contract Securities". As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
you at the Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Contract Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in Schedule A
hereto. At the Closing Time the Company will enter into Delayed Delivery
Contracts with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule A hereto.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
Delayed Delivery Contracts are to be only with such investors and in such
amounts as are approved by the Company. You are to submit to the Company at
least three business days prior to the Closing Time, the names of any investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Contract Securities to be purchased by
each of them, and the Company will advise you, at least two business days prior
to the Closing Time, of the names of the investors with which the making of
Delayed Delivery Contracts is approved by the Company and the principal amount
of Contract Securities to be covered by each such Delayed Delivery Contract.
If the Company executes and delivers Delayed Delivery Contracts, the
aggregate principal amount of Contract Securities will be deducted from the
aggregate principal amount of Purchased Securities to be purchased by the
several Underwriters and the principal amount of the Purchased Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Purchased Securities set forth opposite each Underwriter's
name in Schedule B hereto, except to the extent that the Representatives
determine that such reduction shall be otherwise than pro rata and so advise the
Company in writing; provided, however, that the aggregate principal amount of
Purchased Securities to be purchased by all Underwriters shall
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<PAGE> 8
be the aggregate principal amount of Purchased Securities less the aggregate
principal amount of Contract Securities.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Purchased Securities covered thereby and their terms not
otherwise specified in the Indenture, the names of the Underwriters
participating in the offering and the principal amount of Purchased
Securities which each severally has agreed to purchase, the names of the
Underwriters acting as Representatives in connection with the offering,
the price at which the Purchased Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Purchased Securities.
The Company will transmit copies of the Prospectus Supplement to the
Commission for timely filing pursuant to Rule 424 of the Regulations and
will furnish to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Purchased Securities any
event shall occur or condition exist as a result of which it is necessary
to further amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading
in the light of circumstances existing at the time it is delivered to a
purchaser or if it shall be necessary at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the Regulations, the Company will
promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus comply
with such requirements.
(c) The Company will make generally available to its security
holders, in each case as soon as practicable, an earning statement (in
form complying with the provisions
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<PAGE> 9
of Section 11(a) of the 1933 Act and the Regulations, which need not be
certified by independent certified public accountants unless required by
the 1933 Act or the Regulations) covering a twelve month period beginning
not later than the first day of the Company's fiscal quarter next
following the effective date (as defined in Rule 158 of the Regulations)
of the Registration Statement.
(d) The Company will give you notice of its intention to file any
amendment to the Registration Statement or any supplement to the
Prospectus with respect to the Purchased Securities, other than those made
by the filing of documents pursuant to the 1934 Act, will furnish you with
copies of any such amendment or supplement proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement in a form to which you or your counsel has reasonably
objected.
(e) The Company will notify each of you immediately, and confirm the
notice in writing, (i) of the filing or effectiveness of any amendment to
the Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus with respect to
the Purchased Securities, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus with respect to the Purchased Securities or for additional
information with respect thereto, (v) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Purchased Securities for offer or sale in any state or jurisdiction of the
United States or the initiation or threatening of any proceeding for such
purpose and (vi) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(f) The Company will deliver to each of you as many signed and
conformed copies of the Registration Statement (as originally filed) and
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request and will also deliver to you a
conformed copy of the Registration
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<PAGE> 10
Statement and each amendment thereto for each of the Underwriters.
(g) The Company will endeavor, in cooperation with you, to qualify
the Purchased Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Purchased Securities; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to take any action which
would subject it to general consent to service of process in any state in
which it is not now qualified or not now so subject. The Company will file
such statements and reports as may be required by the laws of each
jurisdiction in which the Purchased Securities have been qualified as
above provided.
(h) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of
the 1934 Act.
(i) Between the date of this Agreement and the Closing Time, the
Company will not, without your prior consent, offer or sell, or enter into
any agreement to sell, any debt securities of the Company with a maturity
of more than one year.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Purchased Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, as of the date hereof and as of the Closing Time, to
the accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of all of its covenants and other obligations hereunder and to the following
further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or, to the knowledge of the
Company or the Underwriters, threatened by the Commission, (ii) the rating
assigned by any nationally recognized statistical rating organization to
any debt securities of the Company as of the date of this Agreement shall
not have been lowered since that date and no such rating agency shall have
publicly announced since that date that it is
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<PAGE> 11
placing any debt securities of the Company on what is commonly termed a
"watch list" for possible downgrading and (iii) the Prospectus, together
with the applicable Prospectus Supplement, shall not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
(b) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Chadbourne & Parke LLP, counsel for the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Registration Statement.
(iii) This Agreement and the Delayed Delivery Contracts,
if any, have been duly authorized, executed and delivered by the
Company.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights in general and
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(v) The Purchased Securities have been duly authorized
by all necessary corporate action and, when duly executed and
authenticated as specified in the Indenture and delivered against
payment therefor pursuant to this Agreement and any applicable
Delayed Delivery Contract, will be valid and binding obligations of
the Company, enforceable in accordance with their terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
the enforcement of
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<PAGE> 12
creditors' rights in general and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be entitled to the
benefits of the Indenture.
(vi) The Indenture and the Purchased Securities conform
in all material respects to the descriptions thereof contained in
the Prospectus and the applicable Prospectus Supplement.
(vii) The Indenture is qualified under the 1939 Act.
(viii) The Registration Statement is effective under the
1933 Act and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(ix) The Registration Statement and the Prospectus
(other than the financial statements and other financial and
statistical data included or incorporated by reference therein, as
to which no opinion need be rendered) comply as to form in all
material respects with the requirements of the 1933 Act, the 1939
Act (other than Form T-1, as to which no opinion need be rendered)
and the Regulations.
(x) Each document, if any, filed pursuant to the 1934
Act (other than the financial statements and other financial and
statistical data included or incorporated by reference therein, as
to which no opinion need be rendered) and incorporated by reference
in the Prospectus, complied when so filed as to form in all material
respects with the 1934 Act and the rules and regulations thereunder.
(xi) No consent, approval, authorization or order of any
court or governmental authority or agency is required in connection
with the issue and sale by the Company of the Purchased Securities
to the Underwriters, except such as may be required under the 1933
Act, the Regulations, the 1939 Act and any state securities laws,
and to the best of their knowledge and information, the execution
and delivery of this Agreement, the Delayed Delivery Contracts, if
any, and the Indenture and the consummation of the transactions
contemplated herein will not conflict with or constitute a breach
of, or
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<PAGE> 13
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 subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument known to
them to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound, nor will
such action result in any violation of the provisions of the
Restated Certificate of Incorporation, as amended, or By-Laws of the
Company, or to the best of their knowledge any law, administrative
regulation or administrative or court decree applicable to the
Company.
Such counsel shall also state that although such counsel does not
assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
(except as and to the extent described in paragraph (vi) above), nothing
has come to their attention that would lead them to believe that the
Registration Statement (other than the financial statements and other
financial and statistical data included or incorporated by reference
therein, as to which no view need be rendered), as of the time it became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as amended
or supplemented at the Closing Time (other than the financial statements
and other financial and statistical data included or incorporated by
reference therein, as to which no view need be rendered), contains an
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(2) The favorable opinion, dated as of the Closing Time, of
David W. Greenfield, Esq., Senior Vice President, General Counsel and
Secretary of the Company, in form and substance satisfactory to you, to
the effect that:
(i) The Company is duly qualified as a foreign corporation and
is in good standing in the State of Michigan and in each other
jurisdiction wherein the character of the property owned or held
under lease by it makes such qualification necessary, except in such
jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability material to
the condition,
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<PAGE> 14
financial or otherwise, of the Company and its subsidiaries
considered as one enterprise.
(ii) Each of HVS and LVS is a subsidiary of the Company, has
been duly formed or incorporated, as the case may be, and is validly
existing and in good standing under the laws of the State of
Delaware and is duly qualified and is in good standing as a foreign
limited liability company or corporation, as the case may be, in
each jurisdiction wherein the character of the property owned or
held under lease by it makes such qualification necessary, except in
such jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability material to
the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise; the outstanding Common
Shares of HVS and the outstanding Common Stock of LVS are validly
issued, fully paid and nonassessable and are owned by the Company
free and clear of any Liens.
(iii) The execution and delivery of this Agreement, the
Delayed Delivery Contracts, if any, and the Indenture and the
consummation of the transactions contemplated herein 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
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any of its subsidiaries is a party or, to the best of his knowledge,
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 subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as amended,
or By-Laws of the Company or any law, administrative regulation or
administrative or court decree applicable to the Company.
(iv) There is no litigation or governmental proceeding pending
or, to the best of his knowledge, threatened against the Company or
any of its subsidiaries which would affect the subject matter of
this Agreement and the Delayed Delivery Contracts, if any, or which
is required to be disclosed in the Prospectus which is not
adequately disclosed therein; and except as may be disclosed in the
Prospectus, there is no such litigation or
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<PAGE> 15
governmental proceeding which would have a material adverse effect
on the financial position or consolidated financial statements of
the Company and its subsidiaries as a whole.
(v) To the best of his knowledge, there are no contracts which
are required to be filed as exhibits to the Registration Statement
which are not so filed or which are required to be disclosed in the
Prospectus which are not adequately disclosed therein.
(3) The favorable opinion or opinions, dated as of the Closing
Time, of Dewey Ballantine LLP, counsel for the Underwriters, with respect
to the incorporation of the Company, the validity of the Purchased
Securities delivered at the Closing Time, the Registration Statement, the
Prospectus and such other related matters as the Representatives may
require.
(c) At the Closing Time there shall not have been, since the date of
this Agreement, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, or any development involving a prospective material adverse
change in or affecting particularly the financial condition of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and you shall have received a
certificate of the Chief Executive Officer or a Vice President of the
Company, dated as of the Closing Time, to the effect that there has been
no such material adverse change or prospective change and to the effect
that the representations and warranties of the Company contained in
Section 1 are true and correct as of the Closing Time.
(d) You shall have received from Deloitte & Touche LLP a letter,
addressed to you and dated as of the Closing Time and delivered at such
time, in form satisfactory to you and concerning such matters as you shall
reasonably request.
(e) At the Closing Time 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
Purchased Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
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<PAGE> 16
Company in connection with the issuance and sale of the Purchased
Securities as herein contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
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 you by
notice to the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement and all amendments thereto,
(ii) the preparation, issuance and delivery of the Purchased Securities to the
Underwriters, (iii) the fees and disbursements of the Company's counsel and
accountants, the Trustee under the Indenture and the Trustee's counsel, (iv) the
qualification of the Purchased Securities under securities laws in accordance
with the provisions of Section 3(g), 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 Legal
Investment Survey, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto, and of the Prospectus, (vi) the printing and delivery to the
Underwriters of copies of the Indenture and any Blue Sky Survey and Legal
Investment Survey, (vii) the fees of rating agencies and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Purchased
Securities on the New York Stock Exchange, if any.
If this Agreement is terminated by you in accordance with the provisions
of Section 4 or Section 9(i), the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters, reasonably incurred in connection
with the subject matter of this Agreement. The Company shall not in any event be
liable to any of the Underwriters for loss of anticipated profits from the
transactions contemplated by this Agreement.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue
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<PAGE> 17
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such untrue statement
or omission or such alleged untrue statement or omission was made (i) in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use
in the Registration Statement or the Prospectus or (ii) in that part of
the Registration Statement which constitutes the Form T-1;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or 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; and
(iii) subject to subparagraph (c), against any and all expense
whatsoever as and when incurred (including the fees and disbursements of
counsel chosen by you) reasonably incurred in investigating, preparing or
defending against any litigation, or 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.
This indemnity is subject to the condition that, insofar as it relates to
any untrue statement or omission, or any alleged untrue statement or omission,
made in the Prospectus, it shall not inure to the benefit of any Underwriter
from whom the person asserting the claim purchased the Purchased Securities (or
to the benefit of any person who controls such Underwriter) if a copy of the
Prospectus (excluding documents incorporated by reference therein), as amended
or supplemented prior to the written confirmation mentioned below, was not
delivered to such person at or prior to the written confirmation of the sale of
such Purchased Securities and the untrue statement or omission or alleged untrue
statement or
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omission was corrected in the Prospectus as supplemented or amended at the time
of such confirmation.
Insofar as this indemnity may permit indemnification for liabilities under
the 1933 Act of any person who is a partner of an Underwriter or who controls an
Underwriter within the meaning of Section 15 of the 1933 Act and who, at the
date of this Agreement, is a director, officer or controlling person of the
Company, such indemnity agreement is subject to the undertaking of the Company
in the Registration Statement.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental investigation or
proceeding) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding subsections (a)
and (b), such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
but failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of subsections (a) and (b)
above. The indemnifying party shall have the right to retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements as incurred of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the indemnified party
shall have reasonably concluded that representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood
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<PAGE> 19
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm (in addition to local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed periodically on a reasonable basis as agreed by the parties. Such
separate firm shall be designated in writing by you in the case of parties
indemnified pursuant to subsection (a) of this Section and by the Company in
the case of parties indemnified pursuant to subsection (b) of this Section. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), settle any pending
or threatened proceeding in respect of which indemnification could have been
sought hereunder by such indemnified party (whether or not the indemnified
party is an actual party to such claim or action) unless such settlement
includes an unconditional release of such indemnified party from all liability
on the claims that are the subject matter of such action.
SECTION 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 of the Purchased Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of such
Underwriters in respect of such offering in such proportions as will reflect the
relative benefits from the offering of such Purchased Securities received by the
Company on the one hand and by such Underwriters on the other hand, provided
that if the Purchased Securities are offered by Underwriters at an initial
public offering price set forth in a Prospectus Supplement, the relative
benefits shall be deemed to be such that the Underwriters shall be responsible
for that portion of the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the underwriting discount appearing
in such Prospectus Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement and each person, if any,
who
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controls the Company within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations and Warranties to Survive Delivery. All
representations and warranties contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of any Purchased Securities to the Underwriters.
SECTION 9. Termination. You may terminate this Agreement, immediately upon
notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, since the date of this Agreement, any material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your reasonable judgment, is material and adverse, which makes it
impracticable to market the Purchased Securities or enforce contracts for the
sale of the Purchased Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on either the New York Stock Exchange or the Nasdaq
National Market has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities. In the event of any such termination, the
provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7, and the provisions of Section 8
and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating in
an offering of Purchased Securities shall fail at the Closing Time to purchase
the Purchased Securities which it or they are obligated to purchase hereunder
(the "Defaulted Securities"), then you shall have the right, within 24 hours
thereafter, to make arrangements satisfactory to the Company for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, during such 24 hours you
shall not have completed such
20
<PAGE> 21
arrangements for the purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated severally to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations
of all such non-defaulting Underwriters (or in such other proportions as
the Representatives may specify), or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Purchased Securities
to be purchased pursuant to this Agreement, this Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either you or the Company shall have the right to postpone the
Closing Time, subject to termination of this Agreement as provided in subsection
(b) above, for a period of time not exceeding seven days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at your address set forth in Schedule A
hereto; notices to the Company shall be directed to it at 2135 West Maple Road,
Troy, Michigan, 48084-7186, attention of the Secretary with a copy to the
Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors 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
21
<PAGE> 22
right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors 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 Purchased
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by the laws of
the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
MERITOR AUTOMOTIVE, INC.
By:
----------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
THE UNDERWRITERS NAMED IN SCHEDULE B HERETO
By:
----------------------------------------
By:
----------------------------------------
22
<PAGE> 23
SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated
Representative(s):
Title of Securities:
Amount of Securities:
Price to Public:
Purchase Price:
Delayed Delivery -
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Closing -
Office for delivery of Securities:
Office for payment for Securities:
Date and time of Closing:
Office for checking Securities:
Underwriting commissions or other compensation:
Addresses for notices per Section 11:
<PAGE> 24
SCHEDULE B
Underwriting Agreement dated
<TABLE>
<CAPTION>
Principal
Underwriter Amount
- ----------- ------
<S> <C>
------
======
</TABLE>
<PAGE> 25
EXHIBIT I
MERITOR AUTOMOTIVE, INC.
(a Delaware corporation)
[Title of Security]
DELAYED DELIVERY CONTRACT
[Date]
MERITOR AUTOMOTIVE, INC.
2135 West Maple Road
Troy, Michigan 48084-7186
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Meritor Automotive, Inc., a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned on _________________, (the "Delivery Date"), _____________ principal
amount of the Company's _______________________ (the "Securities"), offered by
the Company's Prospectus dated ___________, __________, as supplemented by its
Prospectus Supplement dated __________________, _____________, receipt of which
is hereby acknowledged, at a purchase price of ___% of the principal amount
thereof, plus accrued interest from _________________, _____________, to the
Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company on the Delivery Date by wire
transfer of immediately available funds to an account designated by the Company,
upon delivery to the undersigned, at the office of [name and address] or at such
other place as the undersigned and the Company shall agree, of the Securities to
be purchased by the undersigned in definitive form and in such authorized
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _______________,
___________, shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to them
pursuant to the Underwriting Agreement dated ______________, ___________,
between the Company and the Underwriters less the
<PAGE> 26
principal amount thereof covered by this and other similar contracts. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$_____________ and that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at the
address set forth below. This
<PAGE> 27
will become a binding contract between the Company and the undersigned when such
copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-------------------------------------
(Name of Purchaser)
By:
----------------------------------
(Title)
-------------------------------------
-------------------------------------
(Address)
Accepted as of the date first above written:
MERITOR AUTOMOTIVE, INC.
By:
----------------------------------------
<PAGE> 28
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed is as follows:
(Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (including Area Code)
- ---- ---------------------
<S> <C>
</TABLE>
<PAGE> 1
Exhibit 4
MERITOR AUTOMOTIVE, INC.
AND
THE CHASE MANHATTAN BANK,
as Trustee
-------------------------
INDENTURE
Dated as of
April 1, 1998
-------------------------
Debt Securities
<PAGE> 2
TABLE OF CONTENTS*
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.............................................1
"this Indenture" and certain other terms.............1
"Act" ...............................................2
"Affiliate" .........................................2
"Authenticating Agent" ..............................3
"Authorized Newspaper" ..............................3
"Bearer Security" ...................................3
"Board of Directors" ................................3
"Board Resolution" ..................................3
"Business Day" ......................................3
"capital stock" .....................................3
"CEDEL" .............................................3
"Commission" ........................................3
"Company" ...........................................4
"Company Request", "Company Order" and "Company
Consent" .........................................4
"Consolidated Funded Debt" ..........................4
"Consolidated Net Tangible Assets" ..................4
"Conversion Date" ...................................4
"Conversion Event" ..................................4
"corporation" .......................................4
"coupon" ............................................5
"Currency" ..........................................5
"Defaulted Interest" ................................5
"Depositary" ........................................5
"Designated Currency" ...............................5
"Dollar" or "$" .....................................5
"ECU" ...............................................5
"Euroclear" .........................................5
"European Communities" ..............................5
"European Monetary System" ..........................5
"Event of Default" ..................................6
"Exchange Date" .....................................6
"Exchange Rate Agent" ...............................6
* The Table of Contents is not part of the Indenture.
i
<PAGE> 3
"Exchange Rate Officer's Certificate" ...............6
"Foreign Currency" ..................................6
"Funded Debt" .......................................6
"Global Security" ...................................6
"Holder" or "Securityholder" ........................7
"indebtedness" ......................................7
"Indexed Security" ..................................7
"interest" ..........................................8
"Interest Payment Date" .............................8
"mandatory sinking fund payment" ....................8
"Market Exchange Rate" ..............................8
"Maturity" ..........................................9
"Officers' Certificate" .............................9
"Opinion of Counsel" ................................9
"optional sinking fund payment" .....................9
"Original Issue Discount Security" ..................9
"Outstanding" .......................................9
"Paying Agent" .....................................11
"Permanent Global Security" ........................11
"Person" ...........................................11
"Place of Payment" .................................11
"Predecessor Securities" ...........................11
"preferred stock" ..................................11
"Principal Property" ...............................11
"Redemption Date" ..................................12
"Redemption Price" .................................12
"Registered Security" ..............................12
"Regular Record Date" ..............................12
"Remarketing Entity" ...............................12
"Repayment Date" ...................................12
"Repayment Price" ..................................12
"Responsible Officer" ..............................12
"Restricted Subsidiary" ............................13
"Sale and Lease-Back Transaction" ..................13
"Secured Debt" .....................................13
"Securities" .......................................13
"Security Register" and "Security
Registrar" ......................................13
"Special Record Date" ..............................13
"Stated Maturity" ..................................13
"Subordinated Debt" ................................13
"Subsidiary" .......................................14
"Trustee" ..........................................14
"Trust Indenture Act" or "TIA" .....................14
"United States" ....................................14
"United States Alien" ..............................15
"Unrestricted Subsidiary" ..........................15
"Valuation Date" ...................................15
"Wholly-owned Restricted Subsidiary" ...............15
"Yield to Maturity" ................................15
ii
<PAGE> 4
Section 1.02. Compliance Certificates and Opinions...................15
Section 1.03. Form of Documents Delivered to Trustee.................16
Section 1.04. Acts of Securityholders................................17
Section 1.05. Notices, etc., to Trustee and Company..................19
Section 1.06. Notices to Securityholders; Waiver.....................20
Section 1.07. Conflict with Trust Indenture Act......................22
Section 1.08. Effect of Headings and Table of Contents...............22
Section 1.09. Successors and Assigns.................................22
Section 1.10. Separability Clause....................................22
Section 1.11. Benefits of Indenture..................................22
Section 1.12. Governing Law..........................................22
Section 1.13. Payments Due on Non-Business Days......................22
ARTICLE TWO
FORMS OF SECURITIES
Section 2.01. Forms Generally........................................23
Section 2.02. Form of Trustee's Certificate of
Authentication ...................................24
Section 2.03. Global Securities......................................24
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series...................26
Section 3.02. Denominations..........................................32
Section 3.03. Execution, Authentication, Delivery and
Dating ...........................................32
Section 3.04. Temporary Securities...................................35
Section 3.05. Registration, Registration of Transfer
and Exchange .....................................38
Section 3.06. Mutilated, Destroyed, Lost and Stolen
Securities .......................................45
Section 3.07. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset ...............46
Section 3.08. Persons Deemed Owners..................................51
Section 3.09. Cancellation...........................................52
Section 3.10. Currency and Manner of Payments in
Respect of Securities ............................52
Section 3.11. Appointment and Resignation of
Successor Exchange Rate Agent ....................57
Section 3.12. Optional Extension of Maturity.........................58
iii
<PAGE> 5
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture................59
Section 4.02. Application of Trust Money.............................62
Section 4.03. Defeasance and Discharge of Securities
of any Series ....................................63
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default......................................65
Section 5.02. Acceleration of Maturity; Rescission
and Annulment ....................................67
Section 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee .......................68
Section 5.04. Trustee May File Proofs of Claim.......................69
Section 5.05. Trustee May Enforce Claims Without
Possession of Securities or Coupons ..............70
Section 5.06. Application of Money Collected.........................71
Section 5.07. Limitation on Suits....................................72
Section 5.08. Unconditional Right of Securityholders
to Receive Principal, Premium and
Interest..........................................73
Section 5.09. Restoration of Rights and Remedies.....................73
Section 5.10. Rights and Remedies Cumulative.........................73
Section 5.11. Delay or Omission Not Waiver...........................74
Section 5.12. Control by Securityholders.............................74
Section 5.13. Waiver of Past Defaults................................74
Section 5.14. Undertaking for Costs..................................75
Section 5.15. Waiver of Stay or Extension Laws.......................76
Section 5.16. Judgment Currency......................................76
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities....................77
Section 6.02. Notice of Default......................................78
Section 6.03. Certain Rights of Trustee..............................79
Section 6.04. Not Responsible for Recitals or
Issuance of Securities ...........................80
Section 6.05. May Hold Securities....................................81
Section 6.06. Money Held in Trust....................................81
Section 6.07. Compensation and Reimbursement.........................81
Section 6.08. Disqualification; Conflicting Interests................82
iv
<PAGE> 6
Section 6.09. Corporate Trustee Required; Eligibility................82
Section 6.10. Resignation and Removal; Appointment
of Successor ....................................82
Section 6.11. Acceptance of Appointment by Successor.................85
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee ................86
Section 6.13. Preferential Collection of Claims
Against Company ..................................87
Section 6.14. Appointment of Authenticating Agent....................87
ARTICLE SEVEN
SECURITYHOLDERS LIST AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and
Addresses of Securityholders .....................89
Section 7.02. Preservation of Information;
Communications to Securityholders ................89
Section 7.03. Reports by Trustee.....................................91
Section 7.04. Reports by Company.....................................92
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01. Company May Consolidate, etc., Only on
Certain Terms ....................................93
Section 8.02. Successor Corporation Substituted......................93
Section 8.03. Securities to be Secured in Certain
Events ...........................................94
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent
of Securityholders................................94
Section 9.02. Supplemental Indentures with Consent of
Securityholders...................................96
Section 9.03. Execution of Supplemental Indentures...................98
Section 9.04. Effect of Supplemental Indentures......................98
Section 9.05. Conformity with Trust Indenture Act....................98
Section 9.06. Reference in Securities to Supplemental
Indentures .......................................98
v
<PAGE> 7
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and
Interest..........................................99
Section 10.02. Maintenance of Offices or Agencies....................99
Section 10.03. Money for Securities Payments to be
Held in Trust ...................................101
Section 10.04. Statement as to Compliance...........................103
Section 10.05. Limitations on Liens.................................103
Section 10.06. Limitations on Sale and Lease-Back...................107
Section 10.07. Limitations on Change in Subsidiary
Status...........................................108
Section 10.08. Waiver of Covenants..................................109
Section 10.09. Defeasance of Certain Obligations....................109
Section 10.10. Additional Amounts...................................111
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption..................................112
Section 11.02. Applicability of Article.............................113
Section 11.03. Election to Redeem; Notice to Trustee................113
Section 11.04. Selection by Trustee of Securities
to be Redeemed ..................................113
Section 11.05. Notice of Redemption.................................114
Section 11.06. Deposit of Redemption Price..........................115
Section 11.07. Securities Payable on Redemption Date................115
Section 11.08. Securities Redeemed in Part..........................117
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article.............................117
Section 12.02. Satisfaction of Sinking Fund
Payments with Securities.........................118
Section 12.03. Redemption of Securities for
Sinking Fund.....................................118
vi
<PAGE> 8
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 13.01. Purposes for Which Meetings May
Be Called......................................119
Section 13.02. Call, Notice and Place of Meetings...................119
Section 13.03. Persons Entitled to Vote at Meetings.................120
Section 13.04. Quorum; Action.......................................120
Section 13.05. Determination of Voting Rights; Conduct
and Adjournment of Meetings....................121
Section 13.06. Counting Votes and Recording Action of
Meetings.......................................123
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 14.01. Applicability of Article.............................123
Section 14.02. Repayment of Securities..............................124
Section 14.03. Exercise of Option; Notice...........................124
Section 14.04. Election of Repayment by Remarketing
Entities.......................................125
Section 14.05. Securities Payable on the Repayment Date.............126
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, SHAREOWNERS, OFFICERS AND DIRECTORS
Section 15.01. Exemption from Individual Liability..................126
vii
<PAGE> 9
TABLE SHOWING REFLECTION IN THE INDENTURE OF CERTAIN PROVISIONS OF
TRUST INDENTURE ACT OF 1939*
TIA Indenture Section
Section 310(a)(1)................. 6.09
(a)(2)................. 6.09
(a)(3)................. Not Applicable
(a)(4)................. Not Applicable
(a)(5)................. Not Applicable
(b).................... 6.08
(c).................... Not Applicable
Section 311(a).................... 6.13
(b).................... 6.13
(c).................... Not Applicable
Section 312(a).................... 7.01, 7.02(a)
(b).................... 7.02(b)
(c).................... 7.02(c)
Section 313(a).................... 7.03
(b).................... 7.03
(c).................... 7.03
(d).................... 7.03
Section 314(a).................... 7.04
(b).................... Not Applicable
(c)(1)................. 1.02
(c)(2)................. 1.02
(c)(3)................. Not Applicable
(d).................... Not Applicable
(e).................... 1.02
Section 315(a).................... 6.01(a), 6.01(c)
(b).................... 6.02, 7.03
(c).................... 6.01(b)
(d).................... 6.01
(d)(1)................. 6.01(a)
(d)(2)................. 6.01(c)(2)
(d)(3)................. 6.01(c)(3)
(e).................... 5.14
Section 316(a).................... 1.01 ("Outstanding")
(a)(1)(A).............. 5.12
(a)(1)(B).............. 5.13
(a)(2)................. Not Applicable
(b).................... 5.08
(c).................... 1.04(f)
Section 317(a)(1)................. 5.03
(a)(2)................. 5.04
(b).................... 10.03
Section 318(a).................... 1.07
* This Table is not part of the Indenture.
viii
<PAGE> 10
INDENTURE dated as of April 1, 1998 between MERITOR AUTOMOTIVE,
INC., a Delaware corporation (hereinafter called the "Company") having its
principal office at 2135 West Maple Road, Troy, Michigan 48084-7186, and THE
CHASE MANHATTAN BANK, a New York banking corporation, as trustee (hereinafter
called the "Trustee"), having its principal corporate trust office at 450 West
33rd Street, 15th Floor, New York, New York 10001-2697, Attention: Global Trust
Services.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance hereunder from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular
<PAGE> 11
series of Securities established as contemplated by Section 3.01;
(2) all references in this Indenture to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture as originally executed. 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;
(3) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(4) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(5) 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;
(6) certain terms, used principally in Article Three, are
defined in that Article; and
(7) the following terms shall have the following meanings:
"Act" when used with respect to any Securityholder has the meaning
specified in Section 1.04.
"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.
2
<PAGE> 12
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate and deliver 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 financial community of each such place.
"Bearer Security" means any Security that is not a
Registered Security.
"Board of Directors" means the Board of Directors of the Company or
any committee of that Board duly authorized to act for it hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law, regulation or executive order to close, or with respect to Securities
denominated in a Foreign Currency, the capital city of the country of such
Foreign Currency or if denominated in ECU, Brussels, Belgium.
"capital stock" means stock of any class of a corporation.
"CEDEL" means Centrale de Livraison de Valeurs
Mobilieres, 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, as
amended, 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.
3
<PAGE> 13
"Company" means the corporation named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Funded Debt" means the Funded Debt of the Company and
its Restricted Subsidiaries, as consolidated and determined in accordance with
generally accepted accounting principles.
"Consolidated Net Tangible Assets" means, at any date of
computation, the total amount of consolidated assets of the Company and its
consolidated subsidiaries, less the sum of (a) all current liabilities, except
for (i) any short-term debt, (ii) any current portion of long-term debt and
(iii) any current portion of obligations under capital leases, and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense (less unamortized debt premium) and other like intangibles as shown on a
balance sheet of the Company and its consolidated subsidiaries prepared not more
than 90 days prior to the date of computation, in all cases computed in
accordance with generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section
3.10(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any Currency
unit (or composite Currency) other than the ECU for the purposes for which it
was established.
"corporation" includes corporations, associations,
companies and business trusts.
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<PAGE> 14
"coupon" means any interest coupon appertaining to a
Security.
"Currency" means any currency or currencies, composite currency or
composite currencies, 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.
"Defaulted Interest" has the meaning specified in Section
3.07(a).
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have become such as provided pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person which
is then a Depositary hereunder with respect to any Securities of such series. If
at any time there is more than one such Person which is then a Depositary with
respect to the Securities of any series, "Depositary" as used with respect to
any Securities of such series shall mean each Person which is then a Depositary
with respect to such Securities.
"Designated Currency" has the meaning specified in Section
5.16.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or Currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New
York, Brussels Office, or any successor thereof, 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.
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<PAGE> 15
"Event of Default" has the meaning specified in Article
Five.
"Exchange Date" has the meaning specified in Section
3.04(b).
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 3.01, a New York Clearing House bank, designated pursuant to Section
3.01 or Section 3.11.
"Exchange Rate Officer's Certificate" means a tested telex,
telecopier notice or certificate setting forth (i) the applicable Market
Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and
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 3.02 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 telecopier notice) or signed (in the case of a certificate)
by the Treasurer, any Vice President or any Assistant Treasurer of the Company.
"Foreign Currency" means any Currency other than Currency
of the United States.
"Funded Debt" of any corporation means, at any date of computation,
all indebtedness for money borrowed by such corporation which by its terms
matures more than 12 months after such date or which is extendible or renewable
at the option of the obligor on such indebtedness to a time more than 12 months
after such date; provided, however, that (i) Funded Debt shall include all
obligations in respect of lease rentals which, under generally accepted
accounting principles, appear on a balance sheet of the obligor as a liability
item other than a current liability, (ii) in the case of the Company, Funded
Debt shall not include Subordinated Debt and (iii) outstanding preferred stock
of a Restricted Subsidiary that is not owned by the Company or a Wholly-owned
Restricted Subsidiary shall be deemed to constitute a principal amount of Funded
Debt equal to the par value or involuntary liquidation value, whichever amount
is higher, of such preferred stock.
"Global Security" means, with respect to any series of Securities
issued hereunder, a Security, which may be a Registered Security or a Bearer
Security, executed by
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<PAGE> 16
the Company and authenticated and delivered by the Trustee pursuant to Section
3.03, which shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities of such series
or a portion thereof having the same terms, including, without limitation, the
same date or dates on which principal is due, the same interest rate or method
of determining interest and, in the case of Original Issue Discount Securities,
the same issue price (except that such Outstanding Securities of such series or
portion thereof need not have the same issue date) and which shall be a
temporary Global Security or a Permanent Global Security.
"Holder" or "Securityholder" when used with respect to a Registered
Security, means the Person in whose name such Security is registered on the
Security Register and, when used with respect to a Bearer Security, means the
bearer thereof and when used with respect to any coupon, means the bearer
thereof.
"indebtedness" of any corporation shall include all indebtedness, as
determined in accordance with generally accepted accounting principles, created,
incurred or assumed by such corporation or guaranteed by such corporation or
indebtedness for which it is otherwise liable (such as by agreement to purchase
indebtedness of, or to supply funds to or invest in, others), all amounts owing
by such corporation under purchase money mortgages or other purchase money liens
or conditional sale or other title retention agreements, and all indebtedness
secured by any mortgage, security interest, pledge, lien or encumbrance upon
property owned by such corporation, even though such corporation has not assumed
or become liable for the payment of such indebtedness; provided, that, in
computing the "indebtedness" of any corporation, there shall be excluded any
particular indebtedness if, upon or prior to the maturity thereof, there shall
have been deposited with the proper depository in trust money (or evidences of
indebtedness if permitted by the instrument creating such indebtedness) in the
necessary amount to pay, redeem or satisfy such indebtedness, and thereafter
such money and evidences of indebtedness so deposited shall not be included in
any computation of the assets of such corporation.
"Indexed Security" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, or
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Securities or Currencies as specified pursuant to Section 3.01.
"interest" when used with respect to a non-interest bearing Security
means interest payable after Maturity.
"Interest Payment Date" with respect to any Security means the
Stated Maturity of an installment of interest on such Security.
"mandatory sinking fund payment" has the meaning specified
in Section 12.01.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.01, (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 by the method specified pursuant to Section
3.01 for the Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon 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 or 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 3.01, 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 or London or any other principal
market for such Currency or Currency unit 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 or Currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect
8
<PAGE> 18
of such Currency or Currency unit shall be that upon which a nonresident issuer
of securities designated in such Currency or Currency unit would purchase such
Currency or Currency unit 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 becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who
may (except as otherwise expressly provided in this Indenture) be counsel for
the Company and who shall be reasonably acceptable to the Trustee.
"optional sinking fund payment" has the meaning specified
in Section 12.01.
"Original Issue Discount Security" means any Security that 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 5.02.
"Outstanding" when used with respect to Securities of any series
means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities of such series theretofore canceled
by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities of such series for whose payment or redemption
money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
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<PAGE> 19
Securities in accordance with Section 4.01; provided, that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which defeasance has been
effected pursuant to Section 4.03; and
(iv) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (a) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 5.02, (b) the principal amount of a Security
denominated in a Foreign Currency or Currencies that shall be deemed to be
Outstanding for such purposes shall be the Dollar equivalent of the principal
amount (or, in the case of a Security that is an Original Issue Discount
Security or Indexed Security, the principal amount deemed to be Outstanding
pursuant to Clause (a) above or Clause (c) below of this proviso) of such
Security (or, as the case may be, any Predecessor Security) determined upon
original issuance thereof as provided pursuant to Section 3.01(3) with respect
to the Securities of such series, (c) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance unless
otherwise provided with respect to such Security pursuant to Section 3.01 and
(d) Securities of such series owned by the Company or any other obligor upon
such Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
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<PAGE> 20
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon such Securities or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company (which may
include the Company) to pay the principal of (and premium, if any) or interest,
if any, on any Securities on behalf of the Company.
"Permanent Global Security" means a permanent Global Security
representing Securities of a series or a portion thereof.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity.
"Place of Payment" means a city or any political subdivision thereof
designated as such as provided in Section 3.01.
"Predecessor Securities" 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 3.06 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"preferred stock" as applied to the stock of any corporation means
any class of stock of such corporation which has a preference in respect of
dividends or other distributions of assets, or in respect of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution and winding
up of such corporation, over any class of stock of such corporation.
"Principal Property" means any real property (including buildings
and other improvements) of the Company or any Restricted Subsidiary whether
currently owned or hereafter acquired (other than any property hereafter
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<PAGE> 21
acquired for the control or abatement of atmospheric pollutants or contaminants
or water, noise, odor or other pollution, or for purposes of developing a
cogeneration facility or a small power production facility as such terms are
defined in the Public Utility Regulatory Policies Act of 1978, as amended) which
(i) has, at any date of determination, a book value in excess of 2.5% of
Consolidated Net Tangible Assets and (ii) in the opinion of the Board of
Directors is of material importance to the total business conducted by the
Company and its Restricted Subsidiaries as a whole.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption 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 on the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as provided in Section 3.01.
"Remarketing Entity" when used with respect to Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity means any person designated by the Company to purchase any such
Securities.
"Repayment Date" when used with respect to any Security to be repaid
upon exercise of an option for repayment by the Holder means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price" when used with respect to any Security to be
repaid upon exercise of an option for repayment by the Holder means the price at
which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice-president (however
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<PAGE> 22
titled), 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 assistant controller or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Sale and Lease-Back Transaction" has the meaning specified
in Section 10.06.
"Secured Debt" means indebtedness for money borrowed by the Company
or a Restricted Subsidiary (other than indebtedness owed by a Restricted
Subsidiary to the Company, by a Restricted Subsidiary to another Restricted
Subsidiary or by the Company to a Restricted Subsidiary), which is secured by
(a) a mortgage or other lien on any Principal Property of the Company or a
Restricted Subsidiary, or (b) a pledge, lien or other security interest on any
shares of stock or indebtedness of a Restricted Subsidiary. The amount of
Secured Debt at any time outstanding shall be the amount then owing thereon by
the Company or a Restricted Subsidiary.
"Securities" has the meaning stated in the second paragraph of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest
means the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Debt" means any unsecured indebtedness of the Company
which: (1) has a final maturity
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<PAGE> 23
subsequent to the latest final Maturity of the Outstanding Securities of any
series; (2) does not provide for mandatory payment or retirement prior to said
date, whether by means of serial maturities or sinking fund or other analogous
provisions or plan, fixed or contingent, requiring, or which on the happening of
a contingency may require, the payment or retirement of such indebtedness in
amounts which as of any particular time would aggregate more than such portion
of the original principal amount thereof as is obtained by multiplying such
original principal amount by a fraction the numerator of which shall be the
number of months elapsed from the date of creation of such indebtedness to such
time and the denominator of which shall be the number of months from the date of
creation thereof to the final maturity thereof; and (3) is expressly made
subordinate and junior in right of payment to the Securities and such other
indebtedness of the Company (except other Subordinated Debt) as may be specified
in the instruments evidencing the Subordinated Debt or the indenture or other
similar instrument under which it is issued (which indenture or other instrument
shall be binding on all holders of such Subordinated Debt).
"Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries, directly
or indirectly own outstanding shares of capital stock having voting power
sufficient to elect, under ordinary circumstances (not dependent upon the
happening of a contingency), a majority of the directors.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"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 otherwise provided in Section 9.05.
"United States" means the United States of America (including the
District of Columbia) and its possessions and territories and other areas
subject to its jurisdiction (including the Commonwealth of Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands).
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"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"Unrestricted Subsidiary" means (a) any Subsidiary which, in
accordance with the provisions of this Indenture, has been designated by the
Company as an Unrestricted Subsidiary, unless and until such Subsidiary shall,
in accordance with the provisions of this Indenture, be designated by the
Company as a Restricted Subsidiary; and (b) any corporation of which any one or
more Unrestricted Subsidiaries directly or indirectly own outstanding shares of
capital stock having voting power sufficient to elect, under ordinary
circumstances (not dependent upon the happening of a contingency), a majority of
the directors.
"Valuation Date" has the meaning specified in Section
3.10(c).
"Wholly-owned Restricted Subsidiary" means a Restricted Subsidiary
all of the outstanding capital stock of which, other than directors' qualifying
shares, and all of the Funded Debt of which, shall at the time be owned by the
Company or by one or more Wholly-owned Restricted Subsidiaries, or by the
Company in conjunction with one or more Wholly-owned Restricted Subsidiaries.
"Yield to Maturity" when used with respect to an Original Issue
Discount Security means the yield to Maturity on such Security calculated at the
time of issuance thereof, or, if applicable, at the most recent redetermination
of interest on such Security, and calculated in accordance with either the
constant interest method or such other accepted financial practice as is
specified in the terms of such Security established pursuant to Section 3.01.
Section 1.02. 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 an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the
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<PAGE> 25
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or
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<PAGE> 26
representations by, counsel, or, insofar as it relates to accounting matters,
upon a certificate or opinion of, or representations by, independent public
accountants, 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 1.04. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
Securityholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by agent
duly appointed in writing. If Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Securityholders may, alternatively, be embodied in and evidenced by
the record of Securityholders voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Securityholders duly called
and held in accordance with the provisions of Article Thirteen, or a combination
of such instrument or 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 Securityholders
signing such instrument or instruments or so voting at any such meeting. Proof
of execution of any such instrument or
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<PAGE> 27
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of
any meeting of Securityholders shall be proved in the manner provided in Section
13.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by (i) the affidavit of a witness of such
execution or by (ii) the certificate of any 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 person acting in other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) The ownership, 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 in the amount and with the
serial numbers 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 ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved
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in any other manner which the Company and the Trustee deem sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every subsequent
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done or suffered or omitted to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) 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, in or pursuant to a 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 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 30 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, 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.
Section 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Securityholders or other
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document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its principal corporate trust office,
or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.06. Notices to Securityholders; Waiver.
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) (a) to Holders of Registered Securities, if in writing and
mailed, first-class, postage prepaid, to each Holder of Registered Securities
affected by such event, at such Holder's address as it appears on the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice and (b) except as otherwise
specified with respect to any Securities pursuant to Section 3.01, to Holders of
Bearer Securities, if published in an Authorized Newspaper in the City of New
York and, if the Securities of such series are then listed on the London Stock
Exchange Limited and such stock exchange shall so require, in London, and, if
the Securities of such series are then listed on the Luxembourg Stock Exchange
and such stock exchange shall so require, in Luxembourg, and, if the Securities
of such series are then listed on any other stock exchange outside the United
States and such stock exchange shall so require, in any other required city
outside the United States or, if not practicable, in Europe, on a Business Day
at least twice, the first such publication to be not later than the latest date
and not earlier than the earliest date prescribed for the giving of such notice.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first
publication.
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In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
prescribed herein shall be conclusively deemed to have been given to such Holder
whether or not received by such Holder. In case, by reason of the suspension of
regular mail service, or by reason of any other cause, it shall be impossible or
impracticable to give notice to Holders of Registered Securities by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute sufficient notification to Holders for every purpose hereunder.
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.
In case, by reason of the suspension of publication of any
Authorized Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
in an Authorized Newspaper or Authorized Newspapers as required by this
Indenture, then such method of publication or notification to Holders of Bearer
Securities as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice. Neither the failure to give notice by
publication, nor any defect in any notice so given, to any particular Holder of
a Bearer Security as provided herein shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice given to Holders of Registered Securities as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Securityholders 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.
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Section 1.07. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in this
Indenture by any of the provisions of TIA, such required or deemed included
provision shall control.
Section 1.08. 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 1.09. 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 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities of any
series or in any coupons appertaining thereto 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons
appertaining thereto, express or implied, shall give to any Person, other than
the parties hereto, any Authentication Agent, any Paying Agent, any Security
Registrar and their successors hereunder and the Securityholders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and the Securities and any coupons appertaining
thereto shall be governed by and construed in accordance with the internal laws
of the State of New York, without regard to its conflicts of law principles.
Section 1.13. Payments Due on Non-Business Days.
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If any Stated Maturity, Redemption Date, Repayment Date, Interest
Payment Date or other day on which payment of any principal, premium or interest
is required to be made in respect of a Security of any series shall not be a
Business Day with respect to the Securities of such series, then
(notwithstanding any other provision of this Indenture or of such Security or
any coupon appertaining thereto) payment of the principal (and premium, if any)
and interest, if any, otherwise due in respect of such Security need not be made
at such Stated Maturity or on such Redemption Date, Repayment Date, Interest
Payment Date or other day, as the case may be, but may be made on the next
succeeding Business Day with the same force and effect as if made at such Stated
Maturity or on such Redemption Date, Repayment Date, Interest Payment Date or
other day, as the case may be, and no interest shall accrue for the period from
and after such Stated Maturity, Redemption Date, Repayment Date, Interest
Payment Date or other day, as the case may be.
ARTICLE TWO
FORMS OF SECURITIES
Section 2.01. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and the coupons, if any, appertaining thereto
shall be in substantially the form or forms (including temporary or permanent
global form) as shall be established by or pursuant to a Board Resolution (and
set forth in a Board Resolution or, to the extent established pursuant to rather
than set forth in such Board Resolution, in an Officers' Certificate as to such
establishment) or in one or more supplemental indentures hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or 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 such Securities or
coupons.
The Securities of each series shall be issuable as Registered
Securities without coupons or as Bearer
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Securities with or without coupons. Unless otherwise specified with respect to
the Securities of a series as contemplated by Section 3.01, Bearer Securities
(other than Global Securities) will have coupons attached and Bearer Securities
that are Global Securities will not have coupons attached. Registered Securities
and Bearer Securities of a series may, to the extent specified with respect to
the Securities of such series, as contemplated by Section 3.01, be issued as
Global Securities.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities and coupons, as evidenced by their
execution of such Securities and coupons.
Section 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall
be substantially in the following form:
"CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------,
as Trustee
By
------------------------
Authorized Officer"
Section 2.03. Global Securities.
If the Securities of or within a series are issuable as a Global
Security, such Global Security may provide that it shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent Outstanding Securities of such series from time
to time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased or
decreased to reflect exchanges. Any
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endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee and in such manner as shall be specified in such Global
Security. Any instructions by the Company with respect to a Global Security,
after its initial issuance, other than a change in the terms of the Global
Security, shall be in writing but need not comply with Section 1.02 and need not
be accompanied by an Opinion of Counsel.
Unless otherwise provided with respect to the Securities of any
series in accordance with Section 3.01, payment of principal of (and premium, if
any, on) a Permanent Global Security of such series in bearer form shall be made
by the Depositary to each of Euroclear and CEDEL with respect to the portion of
such Permanent Global Security held for each of their respective accounts by the
Depositary. Each of Euroclear and CEDEL will in such circumstances credit the
payment of principal (or premium, if any) received by it in respect of such
Permanent Global Security to the accounts of the beneficial owners thereof.
Payment of interest, if any, on such Permanent Global Security shall be made as
provided in Section 3.07.
The provisions of the last sentence of the last paragraph of Section
3.03 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 1.02 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 the last paragraph of Section 3.03.
Notwithstanding the provisions of Section 3.08 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or 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 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.
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ARTICLE THREE
THE SECURITIES
Section 3.01. 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 at any time and from time to time in
one or more series. There shall be established, at the Company's option, (i) in
or pursuant to one or more Board Resolutions and set forth in an Officers'
Certificate or (ii) in one or more supplemental indentures hereto, in each case,
prior to the issuance of Securities of any series, any or all of the following,
as applicable:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 3.04, 3.05, 3.06, 9.06,
11.08 or 14.03 and except for any Securities which, pursuant to Section
3.03, are deemed never to have been authenticated and delivered
hereunder);
(3) if the Securities of the series are not denominated in Dollars,
the Foreign Currency or Foreign Currencies in which such Securities are
denominated, the manner in which the Dollar equivalent of the principal
amount of each such Security is to be determined upon original issuance
and, if any payment of principal of (or premium, if any) or interest, if
any, on or any other amount in respect of the Securities of the series is
not payable in Dollars, the Foreign Currency or Foreign Currencies in
which such payment shall be payable and the particular provisions
applicable thereto;
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(4) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of (and premium, if
any, on) the Securities of the series is payable;
(5) 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 shall accrue, or
the method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest 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 manner of computing interest, if any, if other
than as specified in the last paragraph of Section 3.07;
(6) the place or places where, subject to Section 10.02, the
principal of (and premium, if any) and 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 notices and demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and where notices to Holders pursuant to Section 1.06 will be
published;
(7) the period or periods within which, the price or prices at
which, the Foreign Currency or Foreign Currencies, if any, in which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the Foreign Currency or
Foreign Currencies, if any, in which and the terms and conditions upon
which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable;
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and the denominations in which Bearer Securities of such series shall be
issuable if other than $10,000 and any integral multiple thereof;
(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
5.02 or the method by which such portion shall be determined;
(11) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Bearer
Securities of the series are to be issuable with or without coupons or
both, whether and the terms upon which Bearer Securities of the series may
be exchanged for Registered Securities of the series, if other than as
provided herein, and, in the case of Bearer Securities (or any temporary
Global Security representing the same), the date as of which such Bearer
Securities shall be dated if other than the date of original issuance of
the first Security of such series of like tenor and term to be issued;
(12) whether the Securities of the series shall be issued in whole
or in part in the form of a Global Security or Securities and, in such
case, the Depositary for such Global Security or Securities, whether such
global form shall be permanent or temporary and, if so, whether beneficial
owners of interests in any such Permanent Global Security may exchange
such interests for Securities of such series in certificated form and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in this Article Three, and, if applicable, the Exchange Date;
(13) whether and under what circumstances, and the terms and
conditions on which, the Company will pay additional amounts on the
Securities of the series in respect of any tax, assessment or governmental
charge withheld or deducted and whether the Company will have the option
to redeem such Securities rather than pay such additional amounts or to
redeem such Securities in the event of the imposition of any
certification, documentation, information or other reporting requirement
and, if so, under what circumstances and
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the terms and conditions on which the Company may exercise such option;
(14) if the amount of payments of principal of (or premium, if any)
or interest, if any, on any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(15) the Person to whom interest, if any, on any Registered Security
of the series shall be payable, if other than 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 payment,
the manner in which, or the Person to whom, interest, if any, on any
Bearer Security of the series shall be payable, if other 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 3.04;
(16) any additions to or changes in any Events of Default
or covenants set forth herein with respect to the Securities of
the series;
(17) the application, if any, of Section 4.03 or Section
10.09 to the Securities of the series;
(18) the designation of the initial Exchange Rate Agent,
if any;
(19) the Trustee with respect to the series, if other than the
Trustee named in this Indenture and the identity of each Authenticating
Agent, Security Registrar and/or Paying Agent, if other than the Trustee;
and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth in such Officers'
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Certificate or in any such supplemental indenture hereto. Securities of any
particular series may be issued at various times, with different dates on which
the principal or any installment of principal is payable, with different rates
of interest, if any, or different methods by which rates of interest may be
determined, with different dates on which such interest may be payable and with
different Redemption or Repayment Dates and may be denominated in different
Currencies or payable in different Currencies.
Prior to the issuance of Securities of any series the Trustee shall
have received and (subject to Section 6.01) shall be fully protected in relying
upon:
(a) the Board Resolution, Officers' Certificate or supplemental
indenture hereto establishing the form of the Securities of the series
pursuant to Section 2.01 and the terms of the Securities of the series
pursuant to this Section;
(b) an Officers' Certificate; and
(c) an Opinion of Counsel stating:
(i) that the form or forms of the Securities of the series
and any coupons appertaining thereto has been established by or
pursuant to a Board Resolution or by a supplemental indenture hereto
as provided by Section 2.01 in conformity with the provisions of
this Indenture;
(ii) that the terms of the Securities of the series and any
coupons appertaining thereto have been established by or pursuant to
a Board Resolution or by a supplemental indenture hereto as provided
by this Section in conformity with the provisions of this Indenture;
(iii) that the Securities of the series and the coupons, if
any, appertaining thereto, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and
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to general equity principles and except further as enforcement
thereof may be limited by (1) requirements that a claim with respect
to any Securities denominated other than in Dollars (or a Foreign
Currency or Currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority
to limit, delay or prohibit the making of payments in Foreign
Currencies or Currency units or payments outside the United States;
and
(iv) that all laws and requirements in respect of the
execution and delivery by the Company of the Securities of the
series and the coupons, if any, appertaining thereto have been
complied with and that authentication and delivery of the Securities
of the series and any coupons appertaining thereto by the Trustee
will not violate the terms of the Indenture.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such series and the coupons, if any, appertaining
thereto
(i) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken;
(ii) if the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors or
trustees and/or vice presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any
outstanding series of Securities; or
(iii) if the issue of the Securities of such series pursuant to
this Indenture will affect the Trustee's own rights, duties and
immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of this Section 3.01 and Section
3.03, if all the Securities of any series are not to be originally issued at one
time, it shall not be necessary to deliver any Board Resolution, Officers'
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Certificate or Opinion of Counsel otherwise required pursuant to this Section or
Section 3.03, prior to or at the time of authentication of each Security of such
series if such documents are delivered prior to or at the time of authentication
upon original issuance of the first Security of such series to be issued and
such additional issuance conforms with the terms of the original documentation.
Section 3.02. Denominations.
Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Security for such series
approved or established pursuant to Section 2.01 or in the Officers' Certificate
or supplemental indenture delivered pursuant to Section 3.01. In the absence of
any specification with respect to the Securities of any series, the Registered
Securities of such series, if any (other than Registered Securities in global
form, which may be in any denomination), shall be issuable in denominations of
$1,000 and any integral multiples thereof and the Bearer Securities of such
series, if any (other than Bearer Securities in global form, which may be in any
denomination), shall be issuable in denominations of $10,000 and any integral
multiple thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Securities and coupons, if any, shall be executed on behalf of
the Company by its Chairman of the Board of Directors or its President or any
Vice President in each case under its corporate seal reproduced thereon, which
corporate seal may be attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or coupons
may be manual or facsimile and may be imprinted or otherwise reproduced on the
Securities or coupons. The corporate seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities or the coupons. Notwithstanding the foregoing, any
temporary Global Security may be executed on behalf of the Company as provided
herein without any necessity of being under its corporate seal as aforesaid.
Securities and coupons appertaining thereto 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
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prior to the authentication and delivery of such Securities or coupons 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, together with any coupons
appertaining thereto, executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee, in accordance with the Company Order, shall
authenticate and deliver such Securities; provided, however, that, 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 3.01, 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 substantially in the form set forth in Exhibit A-1 to
this Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 3.01, 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 Global Security or any Permanent Global Security
first becomes exchangeable for such Bearer Security in accordance with the terms
of such temporary Global Security or Permanent Global Security and this
Indenture. If all the Securities of any one series are not to be issued at one
time and if a Board Resolution or indenture supplemental hereto relating to the
Securities of such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities,
including, without limitation, procedures with respect to date of issue, Stated
Maturity, rate of interest, if any, and date from which interest, if any, shall
accrue as determined by the Company as contemplated by Section 3.01. In
authenticating and delivering such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel as provided in Section
3.01.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee
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shall, in accordance with this Section and Section 3.04, if and to the extent
applicable, and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities in permanent or temporary form that (i)
shall represent and shall be denominated in an aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (iii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions.
Unless otherwise specified with respect to the Securities of a
series as contemplated by Section 3.01, each Person designated pursuant to
Section 3.01 as a Depositary for a Global Security in registered form, at the
time of its designation and at all times while it serves as Depositary, shall be
a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
Each Registered Security (including a Global Security) shall be
dated the date of its authentication. Each Bearer Security of a series
(including a Global Security) shall be dated as of the date of original issuance
of the first Security of such series to be issued except as otherwise
established in or pursuant to the Board Resolution or indenture supplemental
hereto referred to in Section 3.01 relating to the Securities of such series.
No Security or coupon, if any, appertaining thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons, if
any, for interest then matured have been detached and canceled. 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
3.09 together with a written statement (which need not comply with Section 1.02
and need not be
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accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Securities.
(a) 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, either as Registered Securities without coupons, or, if authorized,
as Bearer Securities 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 any series of Securities,
such temporary Securities may be issued as a temporary Global Security
representing such of the Outstanding Securities of such series as shall be
specified therein.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay but, in the case of Securities initially represented by a temporary Global
Security, in any event not later than the applicable Exchange Date. Except in
the case of temporary Global Securities (which shall, except as otherwise
specified with respect to the Securities of such series pursuant to Section
3.01, be exchanged in accordance with the provisions of Subsection (b) of this
Section), after the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
10.02 at a Place of Payment with respect to Securities of such series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of such series of authorized denominations and of a like
Stated Maturity, with
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like terms and provisions, and in the case of Bearer Securities, having attached
thereto any appropriate coupons; provided, however, that, unless otherwise
specified with respect to the Securities of such series pursuant to Section
3.01, 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 3.03, this Section 3.04 and
Section 3.05. Until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and with like terms and conditions authenticated and
delivered hereunder, except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01 or as provided in Subsection
(b) of this Section as to payment of interest, if any.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 3.04(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the 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 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
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<PAGE> 46
thereof, as specified as contemplated by Section 3.01, 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 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 as to the portion of such temporary Global
Security held for its account then to be exchanged, each substantially in the
form set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 3.01; and 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 3.03, this
Section 3.04 and Section 3.05.
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
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 3.01), dated no earlier
than 15 days prior to the Exchange Date, copies of which certificate shall be
available from the officers of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary Global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as
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definitive Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as contemplated by
Section 3.01, 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 Euroclear and CEDEL on such Interest Payment
Date upon delivery by Euroclear and CEDEL to the Trustee of a certificate or
certificates in substantially the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
3.01), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in substantially the form set forth as Exhibit A-1 to this
Indenture (or in such other form as my be established pursuant to Section 3.01).
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 and of Section 3.03(b) 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 premium, if any) or
interest, if any, 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 Euroclear and CEDEL and not paid as herein
provided shall be returned to the Trustee prior to the expiration of 2 years
after such Interest Payment Date in order to be repaid to the Company.
Section 3.05. Registration, Registration of Transfer and Exchange.
With respect to each series of Securities which are Registered
Securities, the Company shall cause to be kept at one of the offices or agencies
maintained by the Company pursuant to Section 10.02, a register (herein
sometimes referred to as the "Security Register") in which,
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subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities of such series and the
registration of transfers of Registered Securities of such series. Said office
or agency is hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities of such series and transfers of Registered
Securities of such series as herein provided. The Company may from time to time
change the place at which the Security Register shall be kept. The Trustee shall
have the right to examine the Security Register for each series at any time
during normal business hours.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company in a Place of
Payment for such series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of such series of any
authorized denominations, of like tenor and terms and aggregate principal
amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of such series of any authorized
denominations, of like tenor and terms and 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 Securityholder making the exchange is entitled to receive.
Unless otherwise specified pursuant to Section 3.01, Bearer Securities may not
be issued in exchange for Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 3.01 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, 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 appertaining thereto. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an
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<PAGE> 49
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 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 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 10.02, 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 and terms after the close of business at such office or
agency of (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 Securityholder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, 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 definitive Securities of such series, as specified with respect to the
Securities of such series pursuant to Section 3.01 and provided that any
applicable notice provided in the Permanent Global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to
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<PAGE> 50
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 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 accordance with instructions from the applicable depositary
(including instructions as to the registration of Registered Securities), 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 3.01, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof or shall, if the Securities of such series are issuable only as
Registered Securities or only as Bearer Securities, be definitive Registered
Securities or definitive Bearer Securities, as the case may be; 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; and 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 before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such
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Permanent Global Security is payable in accordance with the provisions of this
Indenture.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be canceled by the Trustee.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under the fifth paragraph
of Section 3.03, the Company shall appoint a successor Depositary for the
Securities of such series. If a successor Depositary for the Securities of such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 3.01 shall no longer be effective with respect to the
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series of like tenor and terms and in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series of like
tenor and terms and in definitive form in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to
a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon,
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the Company shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(a) to each Person specified by such Depositary a new Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such Person in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in an aggregate principal amount equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Securities (a) in definitive registered form in authorized
denominations, if the Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be
specified by the beneficial owner thereof, if the Securities of such series are
issuable in either form; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Global Security unless the
Company or its agent shall have received from the Person entitled to receive the
definitive Bearer Security a certificate substantially in the form set forth in
Exhibit A-1 and, if applicable, A-2 hereto; and provided, further, that delivery
of a Bearer Security shall occur only outside the United States; and provided,
further, that no definitive Bearer Security will be issued if the Company has
reason to know that any such certificate is false.
All Securities issued upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or exchange shall (if so required by the Company, the Security
Registrar or the
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Trustee) 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 the Holder's 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 transfer, registration of transfer or exchange of Securities, other
than exchanges of Securities expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any particular series to be redeemed for a
period beginning at the opening of business 15 days before (A) if Securities of
such series are issuable only as Registered Securities, the day of the mailing
of a notice of redemption of Securities of such series selected for redemption
under Section 11.03 and ending at the close of business on the day of such
mailing and (B) if Securities of such series are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
earlier, and if Securities of such series are also issuable as Registered
Securities and there is no publication, the day of the mailing of the relevant
notice of redemption and in either case ending at the close of business on the
day of such publication or mailing, 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 such Registered 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 like
tenor and terms of that series, provided, that, such Registered Security shall
be simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; none of the Company, the
Trustee or the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in
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effect and the Company has delivered to the Trustee a Company Order directing
the Trustee not to make such exchanges thereafter unless and until the Trustee
receives a subsequent Company Order to the contrary. The Company shall deliver
copies of such Company Orders to the Security Registrar.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or in the case of a
Registered Security, to the Trustee, or if the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them and their agents
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 its request the Trustee shall authenticate and deliver, in
exchange therefor (together with all appurtenant coupons not destroyed, lost or
stolen) a new Security of the same series and of like tenor and principal
amount, bearing a number not contemporaneously outstanding with coupons
corresponding to any coupons appertaining to such mutilated, destroyed, lost or
stolen Security; provided, that, any such Bearer Security will be delivered only
in compliance with Sections 3.03, 3.04 and 3.05, as applicable.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons corresponding to
the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon (without surrender thereof except
in the case of a mutilated Security or coupon) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them and any agent of them harmless, and in
the case of destruction, loss or theft, evidence satisfactory to the Company and
the Trustee and any agent of either of them of the destruction, loss or theft of
such Security and the ownership thereof; provided, however, that the principal
of (and premium, if any) and interest, if any, on Bearer Securities shall,
except as otherwise provided in
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Section 10.02, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 3.01, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security or coupon under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security of
such series or in exchange for any mutilated Security of such series, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and coupons,
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 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.
(a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 3.01, interest, if any,
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 Registered 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 10.02; provided, however, that each installment of interest, if any, 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 3.08, to the
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address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee inside the United States.
Unless otherwise provided with respect to the Securities of any
series in accordance with Section 3.01, payment of interest, if any, may be
made, in the case of a Bearer Security, at the Holder's option by (i) check in
the Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided with respect to the Securities of any
series in accordance with Section 3.01, every Permanent Global Security of such
series will provide that interest, if any, payable on any Interest Payment Date
will be paid to each of Euroclear and CEDEL with respect to that portion of such
Permanent Global Security held for its account by the Depositary or other
depositary. Each of Euroclear and CEDEL will in such circumstances credit the
interest, if any, received by it in respect of such Permanent Global Security to
the accounts of the beneficial owners thereof.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 3.01, any interest on any
Registered Security of any series which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Registered Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money in
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the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 for the Securities of such
series and except, if applicable, as provided in Sections 3.10(b), 3.10(d)
and 3.10(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 (a "Special Record
Date") for the payment of such Defaulted Interest which shall be not more
than 15 days nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class,
postage prepaid, to each Holder of Registered Securities of such series at
such Holder's address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each
Place of Payment, but such publication shall not be a condition precedent
to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on
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such proposed date of payment 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.
(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 payment shall be deemed
practicable by the Trustee.
(b) The provisions of this Section 3.07(b) may be made applicable to
any series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
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 45 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 1.06, 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 not such next Optional Reset Date, to the Stated
Maturity 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
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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 1.06, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of any 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 follow the procedures set forth in Article Fourteen
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 3.07 and Section
3.05, each Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 3.01, interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.
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Section 3.08. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name any such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Sections 3.05 and
3.07) interest, if any, on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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.
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Section 3.09. Cancellation.
All Securities and coupons surrendered for payment, registration of
transfer, exchange, redemption 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 for cancellation and shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder or any coupon
previously 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 canceled by the Trustee. No Security shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company shall direct the canceled Securities be
returned to it. In the case of any temporary Global Security, which shall be
destroyed if the entire aggregate principal amount of the Securities represented
thereby has been exchanged, the certificate of such destruction shall state that
all certificates required pursuant to Section 3.04, substantially in the form of
Exhibit A-2, to be given by Euroclear or CEDEL, have been duly presented to the
Trustee by Euroclear or CEDEL, as the case may be. Permanent Global Securities
shall not be canceled until exchanged in full for other Permanent Global
Securities or definitive Securities or until payment thereof is made in full.
Section 3.10. Currency and Manner of Payments in Respect
of Securities.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, with respect to Registered Securities of any series
not permitting 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 of (and 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
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Registered Security or Bearer Security, as the case may be, is payable. The
provisions of this Section may be modified or superseded with respect to any
Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 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 of (or
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 for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
3.01, not later than the close of business on the Election Date (as defined
below) 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 for such series of
Registered Securities (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
Four or Section 10.09 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 of such series of
Registered Securities 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 3.10(a). The Trustee for each such
series of Registered Securities 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) If the election referred to in paragraph (b) above has been
provided for pursuant to Section 3.01, then, unless otherwise specified pursuant
to Section 3.01, not later than the fourth Business Day after the Election Date
for each payment date for Registered Securities of any
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series, the Exchange Rate Agent will deliver to the Company a written notice
specifying the Currency in which Registered Securities of such series are
payable, the respective aggregate amounts of principal of (and 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
denominated in any Currency 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 3.01 and if at least one Holder
has made such election, then, unless otherwise specified pursuant to Section
3.01, on the third 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 or Currencies
amount receivable by Holders of Registered Securities who have elected payment
in a Currency as provided in paragraph (b) above. Such amounts 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 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 of (and 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 "Conversion Date"), the Dollar shall be the Currency of payment for use on
each such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee for each such series of
Securities and by such 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 (as defined below) 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.
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(e) Unless otherwise specified pursuant to Section 3.01, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
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 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) of
this Section.
(f) "Dollar Equivalent" when used with respect to any 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 Conversion Date.
(g) "Dollar Equivalent" when used with respect to any 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 (as defined below) of each Component Currency (as defined
below) 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, the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the
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 Conversion Date. If after the 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 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
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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 Currency.
If after the 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 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 Conversion Date of the relevant Currency unit, including, but
not limited to, the ECU, a 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 Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such other prior date for any series of
Registered Securities as specified pursuant to Section 3.01 by which the
written election referred to in Section 3.10(b) 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 for the appropriate series of Securities
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 for the appropriate series of Securities of any such
decision or determination.
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In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 1.06 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a 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 of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 1.06 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the 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 of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders).
The Trustee of the appropriate series of Securities 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 3.11. Appointment and Resignation of Successor
Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, 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 3.01 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
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Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 3.10.
(b) No resignation of the Exchange Rate Agent and no appointment of
a successor Exchange Rate Agent pursuant to this Section 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 of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(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
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, 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 3.12. Optional Extension of Maturity.
The provisions of this Section 3.12 may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to Section 3.01). 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 45 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 1.06, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating
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(i) the election of the Company to extend the Stated Maturity, (ii) the new
Stated Maturity, (iii) the interest rate, if any, 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 1.06, notice of such higher
interest rate to the Holder of any such Security. Such 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 Stated 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 Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Fourteen 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.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture upon Company Request shall cease to be of further
effect with respect to any series of
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Securities specified in such Company Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series expressly
provided for herein or pursuant hereto), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such series when
(1) either
(A) all Securities of such series theretofore authenticated,
issued and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after
such exchange, the surrender of which is not required or has been
waived as provided in Section 3.05, (ii) any Securities or coupons,
if any, appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.06, (iii) coupons appertaining to Bearer Securities called for
redemption or surrendered for payment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate, the
surrender of which has been waived as provided in Section 11.07 or
Section 14.03, and (iv) Securities and coupons for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have been
delivered to the Trustee for cancellation; or
(B) all such Securities of such series and all coupons, if
any, appertaining thereto not theretofore delivered to the Trustee
for cancellation have become due and payable, or will become due and
payable at their Stated Maturity within 1 year, or, if redeemable at
the option of the Company are to be called for redemption within 1
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 has deposited or caused to
be deposited with the Trustee, as trust funds in trust for the
purpose,
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(i) moneys, or
(ii) securities evidencing direct general obligations
of, or obligations the payment of the principal and interest
of which are unconditionally guaranteed by, the United States,
which obligations, or the guaranty of which, constitutes the
full faith and credit obligation of the United States, which
securities shall not be callable at the option of the issuer
and which securities mature and bear interest in such amount
and at such times as will provide moneys, or
(iii) a combination thereof,
in an amount sufficient to pay (without reinvestment) and discharge
the entire indebtedness on such Securities of such series and the
coupons, if any, appertaining thereto not theretofore delivered to
the Trustee for cancellation, for principal (and 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 or any Repayment Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the coupons, if any, appertaining thereto; and
(3) the Company has delivered to the Trustee (i) 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 in respect of such series of Securities and coupons, if
any, have been complied with and (ii) if securities have been deposited
pursuant to Clause (1)(B) of this Section, a certificate of independent
certified public accountants stating that such securities mature and bear
interest in such amount and at such times as will (together with any
moneys otherwise provided pursuant to Clause (1)(B) of this Section)
provide sufficient moneys as provided in Clause (1)(B) of this Section.
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Notwithstanding the satisfaction and discharge of this Indenture in
respect of such series of Securities, the obligations of the Company to the
Trustee under Section 6.07, the obligations of the Trustee to any Authenticating
Agent under Section 6.14 and if moneys or securities shall have been deposited
with the Trustee pursuant to Clause (1)(B) of this Section, Section 4.03 or
Section 10.09, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
Section 4.02. Application of Trust Money.
(a) Subject to the provisions of Section 4.02(c) and the last
paragraph of Section 10.03, all money or securities deposited with the Trustee
pursuant to Section 4.01, 4.03 or 10.09 (or the principal of or interest on such
securities) shall be held in trust and applied by the Trustee, in accordance
with the provisions of this Indenture and of such series of Securities and
coupons, if any, to which such money or securities relate, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent), as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest, if any, for whose
payment such money or securities have been deposited with the Trustee or to make
mandatory sinking fund payments or analogous payments as contemplated by Section
4.03 or 10.09, but such money or proceeds need not be segregated from other
funds except to the extent required by law.
(b) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or securities (or the principal of or
interest on such securities) held by it as provided in Section 4.01, 4.03 or
10.09 which, in the opinion of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such money or securities were deposited or
received. The principal of and interest on the securities deposited in trust
pursuant to Sections 4.03(1) and 10.09(1), to the extent that such principal and
interest are not required for a period of time for the payment of the principal
of (and premium, if any) and interest, if any, on the Securities of such series
and the coupons, if any, with respect to which such securities relate, shall, so
far as practicable, upon a Company Order be invested by the Trustee in like
securities of such maturities (6 months or less)
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such that the funds are available on the applicable payment date to pay the
principal of (and premium, if any) and interest, if any, on such Securities and
coupons, if any, and the Trustee, upon receipt thereof, shall pay to the Company
the income from such investments.
Section 4.03. Defeasance and Discharge of Securities of
any Series.
(a) If this Section 4.03 has been specified in accordance with
Section 3.01 to be applicable to Securities of any series, then notwithstanding
Section 4.01, the Company shall be deemed to have paid and discharged the entire
indebtedness on all Outstanding Securities of that series and the coupons, if
any, appertaining thereto, the provisions of this Indenture as it relates to
such Outstanding Securities and coupons (except as to (i) the rights of Holders
of Securities of such series and coupons, if any, appertaining thereto, to
receive, solely from the trust fund described in Clause (1) of this Section
4.03(a), payment of the principal of (and premium, if any) and any installment
of principal of (and premium, if any) or interest, if any, on such Securities on
the Stated Maturity of such principal or installment of principal or interest or
any mandatory sinking fund payments or analogous payments applicable to the
Securities of that series on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such Securities, (ii) the
Company's obligations with respect to such Securities under Sections 3.05, 3.06,
6.07, 10.02 and 10.03 and (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder) shall no longer be in effect, and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same, when
(1) with reference to this Section 4.03, the Company has deposited
or caused to be deposited with the Trustee (or another trustee that
satisfies the requirements of Section 6.09 and agrees to comply with the
provisions of this Section 4.03 applicable to it), irrevocably
(irrespective of whether the conditions in Clauses (2), (3), (4) and (5)
below have been satisfied, but subject to the provisions of Section
4.02(b) and the last paragraph of Section 10.03), as trust funds in trust
for the purpose,
(A) moneys, or
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(B) securities evidencing direct general obligations of, or
obligations the payment of the principal and interest of which are
unconditionally guaranteed by, the United States, which obligations,
or the guaranty of which, constitutes the full faith and credit
obligation of the United States, which securities shall not be
callable or redeemable at the option of the issuer and which
securities mature and bear interest in such amount and at such times
as will provide moneys, or
(C) a combination thereof,
in an amount sufficient to pay (without reinvestment) and discharge the
principal of (and premium, if any) and each installment of principal of
(and premium, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest, if any, or any
mandatory sinking fund payments or analogous payments applicable to
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of the Indenture and of such
Securities and the coupons, if any, appertaining thereto;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the coupons, if any, appertaining thereto;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that series shall have occurred or be continuing on the
date of such deposit and no Event of Default under Section 5.01(d) or
5.01(e) or an event which with the giving of notice or lapse of time, or
both, would become an Event of Default under Section 5.01(d) or 5.01(e)
shall have occurred and be continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (B) since the date
of this Indenture there has been a change in the applicable Federal income
tax law, in either case to
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the effect that Holders of the Securities of such series and the coupons,
if any, appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred; and
(5) the Company has delivered to the Trustee (A) 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 in respect of the Securities of such series contemplated
by this Section have been complied with and (B) if securities have been
deposited pursuant to Clause (1) of this Section 4.03(a), a certificate of
independent certified public accountants stating that such securities
mature and bear interest in such amount and at such times as will
(together with any moneys otherwise provided pursuant to Clause (1) of
this Section 4.03(a)) provide sufficient moneys as provided in Clause (1)
of this Section 4.03(a).
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against securities deposited
pursuant to this Section 4.03 or Section 10.09 or the principal of or interest
on such securities other than any payable by or on behalf of the Holders.
ARTICLE FIVE
REMEDIES
Section 5.01. 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):
(a) default in the due and punctual payment of any interest upon any
of the Securities of such series
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or coupons, if any, appertaining thereto as and when the same shall become
due and payable, and continuance of such default for a period of 30 days;
or
(b) default in the due and punctual payment of the principal of (and
premium, if any, on) any Securities of such series as and when the same
shall become due and payable at Maturity; or
(c) failure on the part of the Company to duly observe or perform
any other of the covenants or agreements on the part of the Company in the
Securities of such series or in this Indenture contained (other than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of a series of
Securities other than such series) for a period of 90 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Securities of such series at the time Outstanding; or
(d) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary
case under the Federal bankruptcy laws, as now constituted or hereafter
amended, or any other applicable Federal or State bankruptcy, insolvency
or other similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable Federal or State bankruptcy, insolvency or other similar
law, or the consent by it to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the
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admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(f) any other Event of Default provided with respect to
Securities of such series.
Section 5.02. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (or, in the case of Securities of such series that are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal of such Securities as may be specified in the terms thereof) to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Securityholders), and upon any such declaration such
principal (or, as the case may be, such portion thereof) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay, in the Currency in which the Securities of that series
are payable (except as may otherwise be specified pursuant to Section 3.01
for such series and except as may be provided in Section 3.10, if and to
the extent applicable)
(A) all overdue installments of interest, if any, on all
Outstanding Securities of such series, and the coupons, if any,
appertaining thereto,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of such series
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which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by such
Securities (or, in the case of Securities of such series that are
Original Issue Discount Securities, the Yield to Maturity in respect
thereof),
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest, if any, at the rate
or rates borne by such Securities (or, in the case of Securities of
such series, and the coupons, if any, appertaining thereto that are
Original Issue Discount Securities, the Yield to Maturity in respect
thereof), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of (or premium, if any) or
interest, if any, on Securities of such series which have become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if an Event of Default specified in
Section 5.01(a) or 5.01(b) occurs, the Company will, upon demand of the Trustee,
pay to the Trustee, for the benefit of the Holders of the Securities of such
series and the coupons, if any, appertaining thereto, the whole amount then due
and payable on such Securities and coupons for principal (and premium, if any)
and interest, if any, with interest upon the overdue principal (and premium, if
any) and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, if any, at the rate or rates
borne by such Securities (or, in the case of Securities of such series that are
Original Issue Discount Securities, the Yield to Maturity in respect thereof);
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and
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expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and coupons and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
and coupons, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of the Securities of such
series and the coupons, if any, appertaining thereto by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities of any series 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 (or, in the case of Securities of such series that are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal of such Securities as may be specified in
the terms thereof) (and premium, if
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any) and interest, if any, owing and unpaid in respect of the
Securities of such series and the coupons, if any, appertaining
thereto and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders of the Securities of such series and the coupons,
if any, appertaining thereto allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities of such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to 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 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons, if any, appertaining thereto or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder of a Security or coupon in any such proceeding, provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.05. Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the
Securities of any series or the coupons, if any, appertaining thereto may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of any series or the coupons, if any, appertaining thereto or the
production thereof in any proceeding relating
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thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and coupons in respect of which
such judgment has been recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, 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 6.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of any series or the coupons, if any, appertaining thereto for
principal (and premium, if any) and interest, if any, in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities and coupons, for principal (and premium, if any) and interest, if
any, respectively. The Holders of each series of Securities denominated in ECU,
any other composite Currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on such
series of Securities in the Currency in which such series of Securities is
denominated into Dollars at the Exchange Rate as of the date of declaration of
acceleration of the Maturity of the Securities; and
THIRD: The balance, if any, to the Company or any other
Person or Persons entitled thereto.
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Section 5.07. Limitation on Suits.
No Holder of any Security of any series or any coupon appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a
majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders of
Securities of any series or coupons, if any, appertaining thereto shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such
Holders of Securities or coupons or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders of Securities of such series and coupons, if any,
appertaining thereto.
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Section 5.08. Unconditional Right of Securityholders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Section 3.05 or 3.07) interest, if any, on such Security or coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment, on the Redemption Date or Repayment Date) and
to institute suit for the enforcement of any such payment on and after the
respective Stated Maturities or applicable Redemption Date or Repayment Date and
such right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Securityholder, then and in
every such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders of any Security or coupon shall continue as though no
such proceeding had been instituted.
Section 5.10. 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 3.06, 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.
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Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders 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 5.12. Control by Securityholders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to Securities of such series, provided, that,
(1) such direction shall not be in conflict with any rule
of law or this Indenture, and could not involve the Trustee in personal
liability in circumstances where reasonable indemnity would not be
adequate, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
This Section 5.12 shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act and such Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and all coupons, if any, appertaining thereto waive
any past default hereunder and its consequences, except a default
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(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or the coupons, if any,
appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
This Section 5.13 shall be in lieu of Section 316(a)(1)(B) of the
Trust Indenture Act and such Section 316(a)(1)(B) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
of any series or any coupon appertaining thereto by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the enforcement of
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series or any coupon appertaining thereto on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, or, in the case of repayment, on or
after the Repayment Date).
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Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.16. Judgment Currency.
The Company may provide, pursuant to Section 3.01, for the
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 3.01,
(a) the obligation, if any, of the Company to pay the principal of (and premium,
if any) and interest, if any, on the Securities of any series and the coupons,
if any, appertaining thereto in a Foreign Currency, composite Currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 3.01
is of the essence and that judgments in respect of such Securities shall be
given in the Designated Currency; (b) the obligation of the Company to make
payments in the Designated Currency of the principal of (and premium, if any)
and interest, if any, on such Securities and the coupons, if any, appertaining
thereto shall notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) in the country of issue
of the Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite Currency on the
Business Day immediately following the day of such payment; (c) if the amount in
the Designated Currency that may be purchased falls short of the amount
originally due for any reason, the Company shall pay such additional amounts
needed to compensate for any short-fall; and (d) any obligation of the Company
not discharged by such payment shall be due as a separate and independent
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obligation and, until discharged as provided herein, shall continue in full
force and effect.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by Section 315 of the Trust Indenture Act and this Indenture.
(a) Except during the continuance of an Event of Default
in respect of the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default in respect of the Securities of any
series has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
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(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount
of the Outstanding Securities of any series relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Securities of such series.
(d) No provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.02. Notice of Default.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give or transmit, in
the manner and to the extent provided in Section 1.06, to the Holders of
Securities of such series notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series when due, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of
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the Holders of Securities of such series; and provided, further, that in the
case of any default of the character specified in Section 5.01(c) with respect
to Securities of such series no such notice to Holders of Securities of such
series shall be given until at least 90 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series and the
coupons, if any, appertaining thereto pursuant to this Indenture, unless
such Holders shall have offered to
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the Trustee security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
Section 6.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities of any series,
except for the certificates of authentication, and in the coupons, if any,
appertaining thereto shall be taken as the statements of the Company, and the
Trustee and any Authentication Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, 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 on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 6.08 and 6.13, 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 6.06. 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. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any money received
by it hereunder except as provided in Section 4.02 or as otherwise agreed to
with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
in Dollars 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 in Dollars for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
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As security for the performance of the obligations of the Company
under this Section, 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 of (and premium, if any) or interest,
if any, on particular Securities.
Section 6.08. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310(b) of the
Trust Indenture Act.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States or
any State or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$25,000,000, 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 the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(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 an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may
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petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Securityholder who has been a
bona fide Holder of a Security for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting or a decree or
order for relief under the Federal bankruptcy laws shall be entered
against it or it 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, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Securityholder who has been a bona fide Holder of a Security for at least 6
months may, on behalf of himself and all
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others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company by a Board
Resolution shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of any 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 within 1 year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Securityholders and accepted appointment
in the manner hereinafter provided, any Securityholder who has been a bona fide
Holder of a Security of such series for at least 6 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 in respect of the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of any series in
the manner and to the extent set forth in Section 1.06. Each notice shall
include the name of the successor Trustee with respect to the Securities of such
series and the address of its principal corporate trust office.
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Section 6.11. 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 appointed hereunder
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
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges and any other amounts then due to such Trustee under
Section 6.07, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series (including any
initial appointment by the Company in connection with the establishment of the
terms of a series as provided in Section 3.01), 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
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that each such Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
(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 and under the Trust Indenture Act.
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of 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 and under the Trust Indenture Act, 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.
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Section 6.13. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311(a) of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor), excluding any
creditor relationships described in Section 311(b) of the Trust Indenture Act. A
Trustee who resigned or has been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue and
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States or any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $25,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall
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resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided, that, such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a 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 1.06. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in lieu of the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
________________________________,
as Trustee
By_________________________________,
as Authenticating Agent
By_________________________________
Authorized Officer"
ARTICLE SEVEN
SECURITYHOLDERS LIST AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and
Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a)
semi-annually, not more than 15 days after each Regular Record Date with respect
to the Securities of each series at the time Outstanding, a list in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of the preceding Regular Record Date (or
a date to be determined pursuant to Section 3.01 for Original Issue Discount
Securities), and (b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; provided, however, that so long as the Trustee is the
Security Registrar with respect to the Securities of any series, no such list
shall be required to be furnished with respect to Securities of such series.
Section 7.02. Preservation of Information; Communications
to Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, (i) the names and addresses of Holders of Registered
Securities of any series
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contained in the most recent list furnished to the Trustee as provided in
Section 7.01, (ii) the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Security Registrar and (iii) the
names and addresses of Holders of Bearer Securities of such series received by
the Trustee or filed with it within the 2 preceding years.
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) If 3 or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least 6 months preceding the date of such application,
and such application states that the applicants desire to communicate with other
Holders of Securities of such series with respect to their rights under this
Indenture or under the Securities of such series and is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within 5 Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee with respect to such series in
accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series whose names and addresses
appear in the information preserved at the time by the Trustee with
respect to such series in accordance with Section 7.02(a), and as to
the approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee with
respect to such series in accordance with Section 7.02(a), a copy of the form of
proxy or other
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communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
5 days after such tender, the Trustee shall mail to such applicants and file
with the Commission together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 7.02(b), regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 7.02(b).
Section 7.03. Reports by Trustee.
Within 60 days after May 15 in each year, commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture in accordance with and to the extent required under
Section 313 of the Trust Indenture Act.
A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and
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also with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company will
(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, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either of
such Sections, then it will 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, as amended, 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 of Securities, 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
Subsections (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all the
Securities and coupons, if any, appertaining thereto and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Section 8.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of
the properties and assets of the Company substantially as an entirety in
accordance with Section 8.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance or
transfer is made shall succeed to,
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and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein, and thereafter the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture, the
Securities and any coupons and may be liquidated and dissolved.
Section 8.03. Securities to be Secured in Certain Events.
If, upon any consolidation or merger of the Company with or into any
corporation, or upon the conveyance or transfer by the Company of its properties
and assets substantially as an entirety in accordance with Section 8.01 hereof
to any Person, any Principal Property owned by the Company or a Restricted
Subsidiary immediately prior thereto would thereupon become subject to any
mortgage, security interest, pledge, lien or encumbrance not permitted by
Section 10.05, the Company will, prior to such consolidation, merger, conveyance
or transfer, by indenture supplemental hereto, secure the due and punctual
payment of the principal of (and premium, if any) and interest, if any, on the
Outstanding Securities and coupons, if any, appertaining thereto (equally and
ratably with any other indebtedness of the Company then entitled to be so
secured) by a direct lien on such Principal Property, together with any other
properties and assets of the Company or of any such Restricted Subsidiary,
whichever shall be the owner of any such Principal Property, which would
thereupon become subject to any such mortgage, security interest, pledge, lien
or encumbrance, prior to all liens other than any theretofore existing thereon.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of
Securityholders.
Without the consent of the Holders of any Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Securities and any coupons appertaining
thereto (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, which shall not adversely affect
the interests of the Holders of Outstanding Securities of any series or
any coupons appertaining thereto; or
(4) to secure payment of the Outstanding Securities equally and
ratably with certain other liens as and to the extent required by this
Indenture; or
(5) to add to or change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or interest, if any, on Registered
Securities or of principal of (or premium, if any) or any interest on
Bearer Securities, to permit Bearer Securities to be issued in exchange
for Registered 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 Outstanding Securities of any series or the coupons, if any,
appertaining thereto; or
(6) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities
stating that such Events of Default are expressly being included solely
for the benefit of such series); or
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(7) to make any change not otherwise permitted by this
Section that does not adversely affect the rights of any
Securityholder; or
(8) to add or change or eliminate any provisions of this Indenture
as shall be necessary or desirable in accordance with the Trust Indenture
Act; or
(9) to establish the form and terms of Securities of any
series as permitted by Sections 2.01 and 3.01; or
(10) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to 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 6.11(b); or
(11) 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 Outstanding Security of any series created prior to the
execution of such indenture supplemental hereto which is entitled to the
benefit of such provision.
Section 9.02. Supplemental Indentures with Consent of
Securityholders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by 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 or of modifying in any manner the rights
of the Holders of the Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(1) change (except for extensions pursuant to Section 3.12) the
Stated Maturity of the principal of, or any installment of interest, if
any, on, any
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Security of such series, or reduce the principal amount thereof or the
rate of interest, if any, thereon or any premium payable upon the
redemption thereof, or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of Maturity thereof pursuant to Section 5.02, or change the
Currency in which, any Security (or premium, if any) or the interest, if
any, 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, on or after the Redemption
Date or Repayment Date); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults applicable to such series hereunder and their
consequences) provided for in this Indenture or reduce the quorum or
voting requirements of Section 13.04; or
(3) modify any of the provisions of this Section or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security of such series affected
thereby.
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.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) 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 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities of any series affected thereby theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining thereto
shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series and any coupons appertaining thereto
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 and any coupons appertaining thereto.
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ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of such series in accordance
with the terms of the Securities and any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Except as otherwise specified with respect to the Securities
of a series as contemplated by Section 3.01, the interest, if any, due in
respect of any temporary Global Security or any Permanent Global Security shall
be payable only upon presentation thereof to the Trustee for notation thereon of
the payment of such interest. Unless otherwise specified with respect to
Securities of any series pursuant to Section 3.01, at the option of the Company,
all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
Section 10.02. Maintenance of Offices or Agencies.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be served. The
Company initially designates an office of the Trustee in the Borough of
Manhattan, the City of New York, as its agency, and the Trustee is hereby
appointed initially as its agent thereat, for such purposes. If Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable
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thereto, an office or agency in a Place of Payment for such series which is
located outside the United States where Securities of such series and the
coupons, if any, appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
the London Stock Exchange Limited or the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent in London or Luxembourg or
any other required city located outside the United States, as the case may be,
so long as the Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any 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 principal corporate trust
office of the Trustee, and the Company hereby appoints the Trustee, as its agent
to receive all such presentations, surrenders, notices and demands, except that
Bearer Securities of that series and the coupons, if any, appertaining thereto
may be presented and surrendered for payment at the place specified for the
purpose pursuant to Section 3.01.
No payment of principal of (or 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 an address in the United States or by
transfer to an account maintained with a bank located in the United States
except as may be permitted by United States tax laws and regulations at the time
of such payment without detriment to the Company; provided, however, payment of
principal of and any premium and interest denominated in Dollars on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium and interest in Dollars at all offices 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 and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, at the
option of the Holder of any Bearer Security or related coupon, payment may be
made by check in the Currency designated for such payment pursuant to the terms
of such Bearer Security
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presented or mailed to an address outside the United States or by transfer to an
account in such Currency maintained by the payee with a bank located outside the
United States.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 10.03. Money for Securities Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, 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 failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest, if any, on, any Securities of such series and the
coupons, if any, appertaining thereto, deposit with a Paying Agent a sum
sufficient to pay the principal (and 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 or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its failure so
to act.
The Company will cause each Paying Agent for any series of
Securities, other than the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
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(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest, if any, on Securities of such series and the
coupons, if any, appertaining thereto in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of (and premium, if any) or interest, if any, on the
Securities of such series and the coupons, if any, appertaining thereto;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent or then
held by the Company in trust for the payment of the principal of (and premium,
if any) or interest, if any, on any Security of any series and the coupons, if
any, appertaining thereto and remaining unclaimed for 2 years after such
principal (and premium, if any) or interest, if any, has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
coupons 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 mail to each such Holder or cause to be published once in
an Authorized Newspaper in each Place
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of Payment with respect to Securities of such series, 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 mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement as to Compliance
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year (which at the date hereof ends on September 30), a
written statement signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company, stating
that
(1) a review of the activities of the Company during such year and
of performance under this Indenture has been made under his supervision
and
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
Section 10.05. Limitations on Liens.
The Company shall not at any time create, incur, assume or suffer to
exist, and shall not cause, suffer or permit a Restricted Subsidiary to create,
incur, assume or suffer to exist, any Secured Debt without making effective
provision (and the Company covenants that in such case it will make or cause to
be made effective provision) whereby the Securities then outstanding shall be
secured equally and ratably with such Secured Debt, so long as such Secured Debt
shall exist; provided, however, that this Section 10.05 shall not prevent any of
the following:
(a) Secured Debt existing at the date of this Indenture;
(b) (i) any mortgage, security interest, pledge, lien or encumbrance
on any property hereafter acquired (including acquisition through merger
or consolidation) or constructed by the Company or a Restricted Subsidiary
and created contemporaneously with, or within twelve months after, such
acquisition or the
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completion of construction to secure or provide for the payment of all or
any part of the purchase price of such property or the cost of
construction thereof, as the case may be; or (ii) any mortgage on property
(including any unimproved portion of partially improved property) of the
Company or a Restricted Subsidiary created within twelve months of
completion of construction of a new plant or plants on such property to
secure all or part of the cost of such construction; or (iii) the
acquisition of property subject to any mortgage, security interest,
pledge, lien or encumbrance upon such property existing at the time of
acquisition thereof, whether or not assumed by the Company or such
Restricted Subsidiary;
(c) liens on capital stock hereafter acquired by the Company or any
Restricted Subsidiary, provided, that, the aggregate cost to the Company
and its Restricted Subsidiaries of all capital stock subject to such liens
does not exceed 15% of Consolidated Net Tangible Assets;
(d) any mortgage, security interest, pledge, lien or encumbrance:
(i) securing indebtedness of a corporation which is a successor to the
Company to the extent permitted by Article Eight; or (ii) securing
indebtedness of a Restricted Subsidiary outstanding at the time it became
a Restricted Subsidiary; or (iii) securing indebtedness of any Person
outstanding at the time it is merged with, or all or substantially all of
its properties are acquired by, the Company or any Restricted Subsidiary,
provided, that, such mortgage, security interest, pledge, lien or
encumbrance does not extend to any other properties of the Company or any
Restricted Subsidiary; or (iv) existing on the property or on the
outstanding shares or indebtedness of a corporation at the time it becomes
a Restricted Subsidiary; or (v) created, incurred or assumed in connection
with any industrial revenue bond, pollution control bond or similar
financing arrangement between the Company or any Restricted Subsidiary and
any Federal, State or municipal government or other governmental body or
agency;
(e) any mortgage, security interest, pledge, lien or encumbrance
created in connection with any extension, renewal or refunding (or
successive extensions, renewals or refundings), in whole or in part, of
any indebtedness secured by a mortgage,
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security interest, pledge, lien or encumbrance permitted by the foregoing
provisions of this Section 10.05 upon the same property theretofore
subject thereto (plus improvements on such property), provided, that, the
amount of such indebtedness outstanding at that time shall not be
increased;
(f) liens, pledges or deposits made in connection with contracts
(which term includes subcontracts under such contracts) with or made at
the request of the United States or any department or agency thereof,
insofar as such liens, pledges or deposits relate to property
manufactured, installed or constructed by or to be supplied by, or
property furnished to, the Company or a Restricted Subsidiary pursuant to,
or to enable the performance of, such contracts, or property the
manufacture, installation, construction or acquisition of which is
financed pursuant to, or to enable the performance of, such contracts; or
deposits or liens, made pursuant to such contracts, of or upon moneys
advanced or paid pursuant to, or in accordance with the provisions of,
such contracts, or of or upon any materials or supplies acquired for the
purpose of the performance of such contracts; or the assignment or pledge,
to the extent permitted by law, of the right, title and interest of the
Company or a Restricted Subsidiary in and to any such contract, or in and
to any payments due or to become due thereunder, to secure indebtedness
incurred for funds or other property supplied, constructed or installed
for or in connection with the performance by the Company or such
Restricted Subsidiary of its obligations under such contracts;
(g) mechanics', materialmen's, carriers' or other like liens, and
pledges or deposits made in the ordinary course of business to obtain the
release of any such liens or the release of property in the possession of
a common carrier; good faith deposits in connection with tenders, leases
of real estate or bids or contracts (other than contracts involving the
borrowing of money); pledges or deposits to secure public or statutory
obligations; deposits to secure (or in lieu of) surety, stay, appeal or
customs bonds; and deposits to secure the payment of taxes, assessments,
customs duties or other similar charges;
(h) any mortgage, security interest, pledge, lien or encumbrance
arising by reason of deposits with, or the giving of any form of security
to, any governmental
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agency or any body created or approved by law or governmental regulation,
which is required by law or governmental regulation as a condition to the
transaction of any business, or the exercise of any privilege or license,
or to enable the Company or a Restricted Subsidiary to maintain
self-insurance or to participate in any arrangements established by law to
cover any insurance risks or in connection with workmen's compensation,
unemployment insurance, old age pensions, social security or similar
matters;
(i) the liens of taxes, assessments or other governmental charges or
levies not at the time due, or the validity of which is being contested in
good faith;
(j) judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed;
(k) easements or similar encumbrances, the existence of which does
not impair the use of the property subject thereto for the purposes for
which it is held or was acquired;
(l) the landlord's interest under any lease of property;
(m) leases granted to others in the ordinary course of business;
(n) Sale and Lease-Back Transactions (as defined in Section 10.06)
to the extent permitted by Section 10.06; and
(o) contracts for the manufacture, construction, installation or
supply of property, products or services providing for a mortgage,
security interest, pledge, lien or encumbrance upon advance, progress or
partial payments made pursuant to such contracts and upon any material or
supplies acquired, manufactured, constructed, installed or supplied in
connection with the performance of such contracts to secure such advance,
progress or partial payments.
Notwithstanding the foregoing provisions of this Section 10.05, the
Company and any one or more Restricted Subsidiaries may create, incur, assume or
suffer to exist Secured Debt which would otherwise be subject to the foregoing
restrictions in an aggregate amount which,
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together with all other Secured Debt of the Company and its Restricted
Subsidiaries which would otherwise be subject to the foregoing restrictions (not
including Secured Debt permitted under subparagraphs (a) through (o) above) and
the aggregate value of the Sale and Lease-Back Transactions in existence at such
time (not including Sale and Lease-Back Transactions the proceeds of which have
been or will be applied in accordance with Clause (b) of Section 10.06), does
not at the time exceed 15% of Consolidated Net Tangible Assets.
Section 10.06. Limitations on Sale and Lease-Back.
The Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer (except to the Company or one or more Restricted
Subsidiaries, or both) any Principal Property owned by it and which has been in
full operation for more than 180 days prior to such sale or transfer with the
intention (i) of taking back a lease on such property, except a lease for a
temporary period (not exceeding 36 months), and (ii) that the use by the Company
or such Restricted Subsidiary of such property will be discontinued on or before
the expiration of the term of such lease (any such transaction being herein
referred to as a "Sale and Lease-Back Transaction"), unless
(a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 10.05 hereof, to incur Secured Debt
equal in amount to the amount realized or to be realized upon such sale or
transfer secured by a mortgage on the property to be leased without
equally and ratably securing the Securities; or
(b) the Company or a Restricted Subsidiary shall, within 180 days of
the effective date of any such transaction, apply an amount equal to the
value of the property so leased (i) to the retirement (other than any
mandatory retirement) of Consolidated Funded Debt or indebtedness then
outstanding of the Company or any Restricted Subsidiary that was Funded
Debt at the time it was created (other than Consolidated Funded Debt or
such other indebtedness owned by the Company or any Restricted
Subsidiary), or (ii) to the purchase of Principal Property having a value
at least equal to the value of such property; provided, however, that the
amount to be so applied pursuant to the preceding Clause (i) or (ii) shall
be reduced by (A) the
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principal amount of any Securities delivered within 180 days of the
effective date of any such transaction to the Trustee for retirement and
cancellation, and (B) the principal amount of Consolidated Funded Debt or
indebtedness that was Funded Debt at the time it was created (other than
Securities) retired by the Company or a Restricted Subsidiary within 180
days of the effective date of any such transaction; or
(c) the Sale and Lease-Back Transaction involved was an industrial
revenue bond, pollution control bond or similar financing arrangement
between the Company or any Restricted Subsidiary and any Federal, State or
municipal government or other governmental body or agency.
The term "value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale of the property leased pursuant to such Sale and
Lease-Back Transaction or (ii) the fair value of such property at the time of
entering into such Sale and Lease-Back Transaction, as determined by the Board
of Directors, in either case divided first by the number of full years of the
term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
Section 10.07. Limitations on Change in Subsidiary Status.
The Company may designate any Subsidiary as an Unrestricted
Subsidiary or as a Restricted Subsidiary, subject to the provisions set forth
below:
(a) the Company will not permit any Subsidiary to be designated as
an Unrestricted Subsidiary unless at the time of such designation the
Subsidiary so designated does not own, directly or indirectly, any capital
stock of any Restricted Subsidiary or any Funded Debt or Secured Debt of
the Company or any Restricted Subsidiary;
(b) the Company will not permit any Restricted Subsidiary to be
designated as, or otherwise to become, an Unrestricted Subsidiary unless
immediately after such Restricted Subsidiary becomes an Unrestricted
Subsidiary, no Event of Default, and no event which,
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after notice or lapse of time or both, would become an Event of Default,
shall exist;
(c) the Company will not permit any Unrestricted Subsidiary to be
designated as a Restricted Subsidiary unless immediately after such
Unrestricted Subsidiary becomes a Restricted Subsidiary, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall exist; and
(d) promptly after the designation of any Subsidiary as an
Unrestricted Subsidiary or as a Restricted Subsidiary, there shall be
filed with the Trustee, an Officers' Certificate stating that the
provisions of this Section have been complied with in connection with such
designation.
Section 10.08. Waiver of Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.05, 10.06 and 10.07 with respect
to the Securities of any series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Securities of such
series at the time Outstanding shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
Section 10.09. Defeasance of Certain Obligations.
If this Section 10.09 has been specified in accordance with Section
3.01 to be applicable to Securities of any series, the Company may omit to
comply with any term, provision or condition set forth in Sections 10.05, 10.06
and 10.07, and Section 5.01(c) with respect to Sections 10.05, 10.06 and 10.07
shall be deemed not to be an Event of Default, in each case with respect to the
Securities of that series, when
(1) with reference to this Section 10.09, the Company has deposited
or caused to be deposited with the Trustee irrevocably (irrespective of
whether the
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conditions in Clauses (2), (3), (4), (5) and (6) below have been
satisfied, but subject to the provisions of Section 4.02(b) and the last
paragraph of Section 10.03) as trust funds in trust for the purpose,
(A) moneys, or
(B) securities evidencing direct general obligations of, or
obligations the payment of the principal and interest of which are
unconditionally guaranteed by, the United States, which obligations,
or the guaranty of which, constitutes the full faith and credit
obligation of the United States, which securities shall not be
callable or redeemable at the option of the issuer and which
securities mature and bear interest in such amount and at such times
as will provide moneys, or
(C) a combination thereof,
in an amount sufficient to pay (without reinvestment) and discharge the
principal of (and premium, if any) and each installment of principal of
(and premium, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest, if any, or any
mandatory sinking fund payments or analogous payments applicable to
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of the Indenture and of such
Securities and the coupons, if any, appertaining thereto;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the coupons, if any, appertaining thereto;
(3) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest for purposes of
the TIA with respect to the Securities of any series;
(4) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that series shall have occurred or be continuing on the
date of such deposit and no Event of
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Default under Section 5.01(d) or 5.01(e) or an event which with the giving
of notice or lapse of time, or both, would become an Event of Default
under Section 5.01(d) or 5.01(e) shall have occurred and be continuing on
the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series and the
coupons, if any, appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred;
and
(6) the Company has delivered to the Trustee (A) an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the defeasance in respect of the
Securities of such series contemplated by this Section have been complied
with and (B) if securities have been deposited pursuant to Clause (1) of
this Section, a certificate of independent certified public accountants
stating that such securities mature and bear interest in such amounts and
at such times as will (together with any moneys otherwise provided
pursuant to Clause (1) of this Section) provide sufficient moneys as
provided in Clause (1) of this Section.
Section 10.10. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts as contemplated by Clause (13) of Section 3.01, the Company will pay to
the Holder of any Security of such series or any coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest, if any, on or in
respect of, any Security of any series or the payment of any coupon appertaining
thereto or the net proceeds received at Maturity or on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of additional amounts provided for in this Section to the extent
that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express
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mention of the payment of additional amounts (if applicable) in any provisions
hereof shall not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to such series (or if the Securities of such 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 (and
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 of (or premium, if any) or interest, if any, on the
Securities of such series shall be made to Holders of Securities of such series
or any coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption.
The Securities of each series shall be subject to such optional
redemption or mandatory redemption, or both, as shall be set forth in the Board
Resolution or
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supplemental indenture in or pursuant to which such series is established.
Section 11.02. Applicability of Article.
Redemption of Securities of any series at the election of the
Company or otherwise, as permitted or required by their terms, shall be made in
accordance with such terms and, except as otherwise specified pursuant to
Section 3.01 for the Securities of such series, this Article Eleven.
Section 11.03. Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 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.
Section 11.04. Selection by Trustee of Securities to be Redeemed.
Except as otherwise provided pursuant to Section 3.01, 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 of a denomination larger
than $1,000. The portions of the principal of Securities so selected for partial
redemption shall be equal to $1,000 or the smallest authorized denomination of
the Securities of such series, whichever is greater, or an integral multiple
thereof.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security 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
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Security redeemed or to be redeemed only in part, to the portion of the
principal of such Security which has been or is to be redeemed.
Section 11.05. Notice of Redemption.
Notice of redemption shall be in the manner provided in Section 1.06
not less than 30 nor more than 60 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 Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date,
(5) the place or places where such Securities, together in the case
of Bearer Securities with all coupons, if any, appertaining thereto
maturing after the Redemption Date are to be surrendered for payment of
the Redemption Price and accrued interest, if any, which shall be the
office or agency of the Company in each Place of Payment with respect to
Securities of such series,
(6) that the redemption is for a sinking fund, if such is
the case,
(7) that Bearer Securities may be surrendered for payment only at
such place or places outside the United States, except as otherwise
specified in Section 10.02, and unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption must
be accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or
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indemnity satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished, and
(8) 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 the Redemption Date pursuant to Section 3.05 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 of and at the expense of the Company.
Failure to give such notice to the Holder of any Security or any
defect in such notice given to the Holder of any Security shall not affect the
validity of the proceedings for any other Security or part thereof.
Section 11.06. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Redemption Price of and (except if the Redemption
Date shall be an Interest Payment Date), accrued interest, if any, to the
Redemption Date on all the Securities which are to be redeemed on that date.
Section 11.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, 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 accrued interest, if any)
such Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of such Securities for redemption
in accordance with said notice together with all coupons, if any, appertaining
thereto maturing after the Redemption Date, such Securities shall be paid by the
Company at the
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Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of any interest on Bearer Securities of
such series the Stated Maturity of which interest is on or prior to the
Redemption Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) only at an office or agency
outside the United States (except as otherwise provided in Section 10.02) and,
unless otherwise specified with respect to the Securities of such series
pursuant to Section 3.01, only upon presentation and surrender of coupons for
such interest; and provided, further, that, unless otherwise specified with
respect to the Securities of such series pursuant to Section 3.01, installments
of any interest on Registered Securities of such series the Stated Maturity of
which interest is on or prior to the Redemption Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Registered Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
If a Bearer Security of any series surrendered for redemption shall
not be accompanied by all coupons, if any, appertaining thereto maturing after
the Redemption Date, such Bearer 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
if there is furnished to the Company and the Trustee such security or indemnity
as they may require to save each of them and any agent of them harmless. If
thereafter the Holder of such Bearer Security shall surrender to the Trustee or
any Paying Agent in respect of such series 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 without interest thereon;
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 10.02) and, unless otherwise specified with respect to the
Securities of such series pursuant to Section 3.01, 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 borne by the
Security (or,
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in the case of any Original Issue Discount Security, such Security's Yield to
Maturity).
Section 11.08. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Registered
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Registered Security
so surrendered. Any Permanent Global Security which is to be redeemed only in
part shall be so surrendered, and the Company shall execute, and the Trustee
shall authenticate and deliver to the depositary for such Permanent Global
Security, without service charge, a new Permanent Global Security in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Permanent Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article.
Redemption or retirement of Securities of any series through
operation of a sinking fund, as permitted or required by their terms, shall be
made in accordance with such terms and, except as otherwise specified as
contemplated by Section 3.01 for the Securities of such series, this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to
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reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of the Securities of such series.
Section 12.02. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons, if any,
appertaining thereto, and (2) may apply as a credit Securities of a series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided, 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 sinking fund payment shall be reduced accordingly.
Section 12.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities or such shorter period as shall be satisfactory to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for Securities of
such series pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of such
series pursuant to Section 12.02 and will also deliver to the Trustee any
Securities to be so delivered. The Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.04 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.05. Such
notice having been duly given, the redemption
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of such Securities shall be made upon the terms and in the manner stated in
Sections 11.07 and 11.08.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 13.01. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part 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 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 13.02. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable in whole or in part as Bearer Securities for
any purpose specified in Section 13.01, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section l.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 13.01, by
written request setting forth in reasonable detail the action proposed to be
taken at such 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
Borough of
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Manhattan, The City of New York, or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in Subsection (a)
of this Section.
Section 13.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 13.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which is
required to be given by the Holders of not less than a greater percentage in
such principal amount as this Indenture expressly specifies or as shall have
been specified with respect to the Securities of such series pursuant to Section
3.01, the Persons entitled to vote such greater 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 the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairperson 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
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Subject to Section 13.05, notice of the reconvening of any adjourned meeting
shall be given as provided in Section 13.02(a), except that such notice need be
given only once not less than five days prior to the date
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on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any consent or waiver which is required to be given
by the Holders of not less than a greater percentage in such principal amount as
shall have been specified with respect to the Securities of such series pursuant
to this Indenture or Section 3.01 may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid only by
the affirmative vote of the Holders of such greater percentage in principal
amount of the outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the coupons, if any,
appertaining thereto, whether or not present or represented at the meeting.
Section 13.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding
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of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
l.04 and the appointment of any proxy shall be proved in the manner specified in
Section l.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section l.04 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 l.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 13.02(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
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or, in case the
Securities of such series are denominated in a Foreign Currency, the equivalent
thereof) of Securities of such series held or represented by such Person;
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
chairperson of the meeting to be not Outstanding. The chairperson 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 13.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the
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meeting, and the meeting may be held as so adjourned without further notice.
Section 13.06. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 13.02 and, if
applicable, Section 13.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 14.01. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 3.01 for
Securities of such series) in accordance with this Article.
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Section 14.02. Repayment of Securities.
Each Security which is subject to repayment in whole or in part at
the option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its terms, be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
Section 14.03. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Security to be repaid in
whole or in part together with written notice of the exercise of such option at
any office or agency of the Company in the Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; provided, however, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 10.02. Such notice, which shall be
irrevocable, shall specify the principal amount of such Security to be repaid,
which shall be equal to the minimum authorized denomination for such Security or
an integral multiple thereof, and shall identify the Security to be repaid and,
in the case of a partial repayment of the Security, shall specify the
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; 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 10.02.
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The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Security so
surrendered which is not to be paid; provided, however, that the issuance of a
Registered Security therefor shall be subject to applicable laws and regulations
in effect at the time of the exchange; neither the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has
received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States Federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid in part, to the portion of
the principal of such Security which has been or is to be repaid.
Section 14.04. Election of Repayment by Remarketing Entities.
The Company may elect with respect to Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity,
at any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders
125
<PAGE> 135
thereof who give notice and surrender their Securities in accordance with
Section 14.03.
Section 14.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and
the Securities so to be repaid having been surrendered as aforesaid, such
Securities shall, unless purchased in accordance with Section 14.04, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Securities shall cease to bear interest and
shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Securities from time to time until
payment in full of such principal amount.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, SHAREOWNERS,
OFFICERS AND DIRECTORS
Section 15.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security or the coupons, if any, appertaining thereto,
or for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, shareowner, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareowners, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the
126
<PAGE> 136
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or the coupons, if any, appertaining thereto or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, shareowner, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any Securities of any series or any coupon appertaining thereto
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issue of
such Securities and coupons.
This Indenture may be executed in any number of counterparts, each
of which will be deemed to be an original, but all such counterparts together
will constitute one and the same instrument.
127
<PAGE> 137
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
MERITOR AUTOMOTIVE, INC.
[CORPORATE SEAL]
By: /s/ David W. Greenfield
------------------------------
Title: Senior Vice President,
General Counsel and
Secretary
Attest:
/s/ Bonnie Wilkinson
- ----------------------------
Title: Assistant Secretary
THE CHASE MANHATTAN BANK, as Trustee
[CORPORATE SEAL]
By: /s/ Michael A. Smith
------------------------------
Title: Vice President
Attest:
/s/ Robert S. Peschler
- -----------------------------
Authorized Officer
128
<PAGE> 138
EXHIBIT A
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
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 or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(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 Meritor Automotive, 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 or 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.
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
A-1-1
<PAGE> 139
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]
---------------------------------
Name:
Title:
(AUTHORIZED SIGNATORY)
- -------------------------------
A-1-2
<PAGE> 140
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL 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 or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("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 Meritor Automotive, 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 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
A-2-1
<PAGE> 141
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]
By ________________________________
Name:
Title:
A-2-2
<PAGE> 1
Exhibit 5
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
(212) 408-5100
April 9, 1998
Meritor Automotive, Inc.
2135 West Maple Road
Troy, Michigan 48084-7186
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by Meritor Automotive, Inc., a Delaware corporation (the
"Company"), of the Company's debt securities in an aggregate principal amount
(or net proceeds, in the case of debt securities issued at an original issue
discount) of up to $500,000,000 (the "Debt Securities") to be issued and sold by
the Company from time to time in one or more series in accordance with Rule 415
under the Act pursuant to an Indenture dated as of April 1, 1998 (the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee, we
advise as follows:
As counsel for the Company, we are familiar with the Restated
Certificate of Incorporation and By-Laws of the Company, each as amended to the
date hereof, and we have reviewed the
<PAGE> 2
Meritor Automotive, Inc. -2- April 9, 1998
Registration Statement on Form S-3 to be filed by the Company under the Act with
respect to the Debt Securities (the "Registration Statement") and the corporate
proceedings taken by the Company in connection with the authorization of the
Debt Securities. We have also examined originals, or copies certified to our
satisfaction, of such corporate records of the Company and other instruments,
certificates of public officials and representatives of the Company, and other
documents as we have deemed necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies. As
to questions of fact material to this opinion, we have, when relevant facts were
not independently established, relied upon certificates of officers of the
Company and appropriate public officials.
On the basis of the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that when (i) the
Registration Statement has become effective under the Act, (ii) the Indenture
has been qualified under the Trust Indenture Act of 1939, as amended, (iii) the
Debt Securities have been duly authorized, executed and authenticated as
provided in the Indenture and delivered against payment therefor, the Debt
Securities will be legally and validly issued and will constitute the valid and
binding obligations of the
<PAGE> 3
Meritor Automotive, Inc. -3- April 9, 1998
Company, enforceable against the Company in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights in general and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
We express no opinion herein as to any laws other than the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. We also hereby consent to the reference to this firm
under the caption "Legal Matters" in the Prospectus constituting a part of the
Registration Statement.
Very truly yours,
Chadbourne & Parke LLP
<PAGE> 1
Exhibit 12
MERITOR AUTOMOTIVE, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in millions of dollars, except ratios)
<TABLE>
<CAPTION>
Quarter Pro Forma
Ended Year Ended
December 31, September 30, Fiscal Year Ended September 30, (1)
---------------------------------------------------
1997 1997(2) 1997 1996 1995 1994 1993
----- ------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings Available for Fixed Charges: (3)
Pre-tax income from continuing
operations $ 54 $ 169 $ 186 $ 182 $ 185 $ 88 $ 102
Adjustments:
Undistributed income of affiliates (3) (15) (15) (11) (6) (6) (3)
Minority interest in loss of subsidiaries 4 11 11 11 8 6 5
-----------------------------------------------------------------------------
55 165 182 182 187 88 104
-----------------------------------------------------------------------------
Add fixed charges included in earnings:
Interest expense 10 38 10 10 11 12 13
Interest element of rentals 2 7 7 7 8 7 5
-----------------------------------------------------------------------------
Total 12 45 17 17 19 19 18
-----------------------------------------------------------------------------
Total earnings available for fixed charges: $ 67 $ 210 $ 199 $ 199 $ 206 $ 107 $ 122
-----------------------------------------------------------------------------
Fixed charges: (3)
Fixed charges included in earnings $ 12 $ 45 $ 17 $ 17 $ 19 $ 19 $ 18
Capitalized interest 0 0 0 0 1 0 0
-----------------------------------------------------------------------------
Total fixed charges $ 12 $ 45 $ 17 $ 17 $ 20 $ 19 $ 18
Ratio of Earnings to Fixed Charges 5.6 4.7 11.7 11.7 10.3 5.6 6.8
</TABLE>
(1) The financial information presented for periods prior to September 30,
1997 has been prepared based on the combined historical financial
position, results of operations and cash flows of the ongoing
automotive businesses of Rockwell prior to the Distribution and is
not necessarily indicative of what the financial position, results of
operations or cash flows would have been had the Company been an
independent public company during the periods presented.
(2) Pro forma financial information presented as if the Company was a
stand-alone entity in fiscal 1997. Pro forma information reflects (a)
the 68.9 million shares of the Company's common stock issued on the
date of the Distribution, (b) management's estimate that corporate
costs would have been $11 million lower on a stand-alone basis than
those allocated to the automotive businesses by Rockwell and (c) $28
million of interest expense at 6 percent for the year ended
September 30, 1997, related to the debt incurred by the Company in
connection with the $445 million pre-Distribution payment to Rockwell.
(3) "Earnings" are defined as pre-tax income from continuing operations,
adjusted for income or loss attributable to minority interest in
subsidiaries, undistributed earnings of less than majority owned
subsidiaries, and fixed charges excluding capitalized interest. "Fixed
charges" are defined as interest on borrowings (whether expensed or
capitalized) and that portion of rental expense applicable to
interest.
<PAGE> 1
Exhibit 23a
INDEPENDENT AUDITORS' CONSENT
To The Board of Directors and Stockholders of
Meritor Automotive, Inc.
Troy, Michigan
We consent to the incorporation by reference in this Registration Statement of
Meritor Automotive, Inc. on Form S-3 of our reports dated November 12, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Meritor Automotive, Inc. for the year ended September 30, 1997 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
DELOITTE & TOUCHE LLP
Detroit, Michigan
April 7, 1998
<PAGE> 1
Exhibit 23c
CONSENT OF COUNSEL
I hereby consent to the incorporation by reference in this Registration
Statement of Meritor Automotive, Inc. ("Meritor") on Form S-3 of the references
to me under the headings "Item 1. Business - Environmental Matters" and "Item 3.
Legal Proceedings" in the Annual Report on Form 10-K of Meritor for the fiscal
year ended September 30, 1997, and under the heading "Chief Financial Officer's
Review Management's Discussion and Analysis - Environmental Matters" in
Meritor's 1997 Annual Report to Shareowners, incorporated by reference in such
Form 10-K.
/s/ David W. Greenfield
-----------------------------
David W. Greenfield
Date: April 9, 1998
<PAGE> 1
Exhibit 23d
CONSENT OF COUNSEL
I hereby consent to the incorporation by reference in this Registration
Statement of Meritor Automotive, Inc. ("Meritor") on Form S-3 of the reference
to me under the heading "Item 3. Legal Proceedings" in the Annual Report on Form
10-K of Meritor for the fiscal year ended September 30, 1997.
/s/ M. Lee Murrah
----------------------
M. Lee Murrah
Date: April 9, 1998
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
I, the undersigned Director and/or Officer of Meritor Automotive, Inc.,
a Delaware corporation (the "Company"), hereby constitute THOMAS A. MADDEN,
DAVID W. GREENFIELD, THOMAS J. JOYCE and PETER R. KOLYER, and each of them
singly, my true and lawful attorneys with full power to them and each of them to
sign for me, and in my name and in the capacity or capacities indicated below,
the Registration Statement on Form S-3, and any amendments and supplements
thereto, to be filed by the Company with the Securities and Exchange Commission
for the purpose of registering $500,000,000 aggregate principal amount of the
Company's debt securities under the Securities Act of 1933, as amended, and
qualifying the related indenture under the Trust Indenture Act of 1939, as
amended.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Larry D. Yost Chairman of the Board and April 8, 1998
- --------------------------- Chief Executive Officer
Larry D. Yost (principal executive officer)
and Director
/s/ Joseph B. Anderson, Jr. Director April 8, 1998
- ---------------------------
Joseph B. Anderson, Jr.
/s/ Donald R. Beall Director April 8, 1998
- ---------------------------
Donald R. Beall
/s/ John J. Creedon Director April 8, 1998
- ---------------------------
John J. Creedon
/s/ Charles H. Harff Director April 8, 1998
- ---------------------------
Charles H. Harff
/s/ Harold A. Poling Director April 8, 1998
- ---------------------------
Harold A. Poling
/s/ Thomas A. Madden Senior Vice President April 8, 1998
- --------------------------- and Chief Financial Officer
Thomas A. Madden (principal financial officer)
/s/ Lawrence J. Lockwood Vice President and Controller April 8, 1998
- --------------------------- (principal accounting officer)
Lawrence J. Lockwood
</TABLE>
<PAGE> 1
EXHIBIT 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Meritor Automotive, Inc.
(Exact name of obligor as specified in its charter)
Delaware 38-3354643
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
2135 West Maple Road
Troy, MI 48084-7186
(Address of principal executive offices) (Zip Code)
========================================
Debt Securities
(Title of the indenture securities)
===========================================
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 30th day of March, 1998.
THE CHASE MANHATTAN BANK
By: /s/ Michael A. Smith
-----------------------
Michael A. Smith
Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1997, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin.......................................... $ 11,760
Interest-bearing balances.................................. 4,343
Securities:
Held to maturity securities................................... 2,704
Available for sale securities................................. 37,885
Federal funds sold and securities purchased under
agreements to resell....................................... 27,358
Loans and lease financing receivables:
Loans and leases, net of unearned income ..... $127,370
Less: Allowance for loan and lease losses .... 2,760
Less: Allocated transfer risk reserve......... 13
--------
Loans and leases, net of unearned income,
allowance, and reserve..................................... 124,597
Trading Assets................................................ 64,630
Premises and fixed assets (including capitalized
leases).................................................... 2,925
Other real estate owned....................................... 286
Investments in unconsolidated subsidiaries and
associated companies....................................... 232
Customers' liability to this bank on acceptances
outstanding................................................ 2,212
Intangible assets............................................. 1,480
Other assets.................................................. 11,117
-------
TOTAL ASSETS.................................................. $291,529
========
</TABLE>
-4-
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits
In domestic offices........................................ $86,574
Noninterest-bearing............................. $31,818
Interest-bearing................................ 54,756
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's.................................................. 69,887
Noninterest-bearing............................. $ 3,777
Interest-bearing................................ 66,110
Federal funds purchased and securities sold under agree-
ments to repurchase........................................... 45,307
Demand notes issued to the U.S. Treasury...................... 161
Trading liabilities........................................... 47,406
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............. 4,578
With a remaining maturity of more than one year
through three years..................................... 261
With a remaining maturity of more than three years ........ 131
Bank's liability on acceptances executed and outstanding ..... 2,212
Subordinated notes and debentures............................. 5,715
Other liabilities............................................. 12,355
TOTAL LIABILITIES............................................. 274,587
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................ 0
Common stock.................................................. 1,211
Surplus (exclude all surplus related to preferred stock) .... 10,294
Undivided profits and capital reserves........................ 5,414
Net unrealized holding gains (losses)
on available-for-sale securities.............................. 7
Cumulative foreign currency translation adjustments .......... 16
TOTAL EQUITY CAPITAL.......................................... 16,942
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.......................... $291,529
========
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I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the
best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined
by us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true and
correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
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